Barclay, J.
— This an action for personal injuries sustained by plaintiff. He charges defendant with liability therefor on accouilt of the want of needful [127]*127rules for the management of its business in which he was employed.
We need not recite the pleadings, as their essential features will appear further on.
The case was before the second division of the court on a former occasion, and is reported, 110 Mo. 312.
Plaintiff’s evidence disclosed that he was a switch-man in the railway yards of defendant at Chamois, Missouri, at the time of his injury, August 12, 1887. It was night; about 9 o’clock. A local freight train had come into the yard, composed of both loaded and empty cars. These were arranged or “made up” under the direction of Mr. Humphrey, the night yardmaster at that point. In this process plaintiff received an order from Mr. Humphrey to cut off the last car. The train (consisting of twenty-six or twenty-seven cars) was moving slowly westward, at a speed of about six or seven miles an hour. The car to be “cut off,” or disconnected from the other cars, was an empty flat, or coal car. Immediately in front of it was a box car. The coal car had barriers of board, about three feet high, along the side. Plaintiff climbed upon the ear, and had just passed around the end of the side-board, approaching the drawhead to take out the coupling-pin, when the train suddenly checked its motion, without any signal from plaintiff, and he was thrown to the ground between the cars and injured so that he lost his right arm in consequence.
The train was moved by a locomotive engine at the west, or forward end. An engineer and fireman were upon the locomotive.
The switching crew of the yards consisted of plaintiff and two other men besides the yard-master. One of these other switchmen' was working on this train, toward the forward end, much nearer to the locomo[128]*128tive than plaintiff. The yard-master was on the ground, and west of plaintiff’s position when he was injured.
All the switchmen and the yard-master had hand lanterns with which signals were given. 4
The engineer of the train testified on behalf of plaintiff that he reversed the engine in response to a signal from someone; but he did not identify the giver of it.
Mr. Dring, the switchman nearest to the engine, testified for defendant that he transmitted the stop signal to the engineer; but had received it from someone east of him (that is to say in the direction of the plaintiff). Plaintiff, as also the yard-master and the remaining switchman (who was a long distance east of the train and was not at the moment working with it), testified, each for himself, that he gave no signal whatever at that time.
On the part of defendant, it appeared that the printed rules governing employees, contained the following directions as to signals, viz:
“lamp signals.”
“1. A lamp swung across the track is a signal to stop.
“2. A lamp raised and lowered vertically is a signal to move ahead.
“3. A lamp swung vertically in a circle across the track, when the train is standing, is a signal to move back.
“4. A lamp swung vertically in a circle across the track when the train is running, is a signal that the train has parted.
“5. A flag or the hand moved in any of the directions given above, will indicate the same signal as given by the lamp.”
[129]*129The plaintiff, in his own examination, admitted that he was acquainted with the above rules, and that they were in force at the time of his injury.
This is a brief outline of the essential features of the case.
The plaintiff relies on a charge of negligence, in that defendant omitted to promulgate and enforce a rule that the person coupling or uncoupling cars should alone give the signals for the movement of trains necessarily incident to those acts.
1. It appeared from plaintiff’s personal testimony that, the point at which he was hurt was distant some twenty-five or twenty-six car lengths from the engine whose movement, unexpected by plaintiff, caused his injury; and that when a man, in the act of coupling, could not be seen by the engineer, the signal was transmitted from the former to the latter through some intermediate employee whose duty it was to repeat the signal.
Plaintiff’s own evidence shows that any such rule as he contends for, namely, that “no one shall give a signal to move the cars except the party who is doing the work,” is entirely unreasonable and impracticable.
Signals must of necessity often be communicated' by others, as plaintiff himself admits. A rule which would require no movement of the engine to be made, in such circumstances, except in response to a signal from one person, when he might be in a position where his signal could not be seen by the engineer, would be such an unreasonable impediment to the p'rompt dispatch of defendant’s business as a public carrier, that we do not consider the question whether or not defendant was bound to adopt it, debatable, or one upon which fair minded men would differ.
2. • But let us view plaintiff’s contention more broadly, treating it as a demand for some rule requir[130]*130ing the signal for a train’s movement, in such a case, to start from the workman engaged in handling the coupling machinery.
The printed rules (above copied) prescribe with much precision what signals are to be made to direct the necessary movements of trains. They do not expressly state by whom the signals are to be given; but it is fairly to be inferred that they are to originate with the individual employee entitled at the time to call for the required movement. The printed rules are intended for use by men acquainted with the business they undertake. Rules are not required to minutely direct every detail of the work which the employees are accustomed to perform properly.
Plaintiff himself said, in reply to the question, “who has to give the signal?”, “the man doing the work, for he can’t do the work without it.”
The proof on behalf of plaintiff plainly indicates that the workmen understood and acted upon the printed rules, touching signals, in accordance with the inference which those rules -naturally suggest; and that a custom or practice existed, conforming to the method of work which plaintiff claims should have been more formally expressed on paper and declared to be a rule.
He emphasizes the fact that a general custom, “system” or practice had long prevailed among the defendant’s workmen at Chamois to the effect above stated; and relies upon it as tending to indicate defendant’s negligence.
Plaintiff, in his cross-examination, stated his legal position with entire frankness in this way:
“Question. That is what you base your case upon, that the negligence of the company was its failure to print, in this time-card, the custom that the man who wanted to stop of start the train should give the signal? [131]*131That is your whole ground of complaint, is it not? Answer. Yes, sir.”
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Barclay, J.
— This an action for personal injuries sustained by plaintiff. He charges defendant with liability therefor on accouilt of the want of needful [127]*127rules for the management of its business in which he was employed.
We need not recite the pleadings, as their essential features will appear further on.
The case was before the second division of the court on a former occasion, and is reported, 110 Mo. 312.
Plaintiff’s evidence disclosed that he was a switch-man in the railway yards of defendant at Chamois, Missouri, at the time of his injury, August 12, 1887. It was night; about 9 o’clock. A local freight train had come into the yard, composed of both loaded and empty cars. These were arranged or “made up” under the direction of Mr. Humphrey, the night yardmaster at that point. In this process plaintiff received an order from Mr. Humphrey to cut off the last car. The train (consisting of twenty-six or twenty-seven cars) was moving slowly westward, at a speed of about six or seven miles an hour. The car to be “cut off,” or disconnected from the other cars, was an empty flat, or coal car. Immediately in front of it was a box car. The coal car had barriers of board, about three feet high, along the side. Plaintiff climbed upon the ear, and had just passed around the end of the side-board, approaching the drawhead to take out the coupling-pin, when the train suddenly checked its motion, without any signal from plaintiff, and he was thrown to the ground between the cars and injured so that he lost his right arm in consequence.
The train was moved by a locomotive engine at the west, or forward end. An engineer and fireman were upon the locomotive.
The switching crew of the yards consisted of plaintiff and two other men besides the yard-master. One of these other switchmen' was working on this train, toward the forward end, much nearer to the locomo[128]*128tive than plaintiff. The yard-master was on the ground, and west of plaintiff’s position when he was injured.
All the switchmen and the yard-master had hand lanterns with which signals were given. 4
The engineer of the train testified on behalf of plaintiff that he reversed the engine in response to a signal from someone; but he did not identify the giver of it.
Mr. Dring, the switchman nearest to the engine, testified for defendant that he transmitted the stop signal to the engineer; but had received it from someone east of him (that is to say in the direction of the plaintiff). Plaintiff, as also the yard-master and the remaining switchman (who was a long distance east of the train and was not at the moment working with it), testified, each for himself, that he gave no signal whatever at that time.
On the part of defendant, it appeared that the printed rules governing employees, contained the following directions as to signals, viz:
“lamp signals.”
“1. A lamp swung across the track is a signal to stop.
“2. A lamp raised and lowered vertically is a signal to move ahead.
“3. A lamp swung vertically in a circle across the track, when the train is standing, is a signal to move back.
“4. A lamp swung vertically in a circle across the track when the train is running, is a signal that the train has parted.
“5. A flag or the hand moved in any of the directions given above, will indicate the same signal as given by the lamp.”
[129]*129The plaintiff, in his own examination, admitted that he was acquainted with the above rules, and that they were in force at the time of his injury.
This is a brief outline of the essential features of the case.
The plaintiff relies on a charge of negligence, in that defendant omitted to promulgate and enforce a rule that the person coupling or uncoupling cars should alone give the signals for the movement of trains necessarily incident to those acts.
1. It appeared from plaintiff’s personal testimony that, the point at which he was hurt was distant some twenty-five or twenty-six car lengths from the engine whose movement, unexpected by plaintiff, caused his injury; and that when a man, in the act of coupling, could not be seen by the engineer, the signal was transmitted from the former to the latter through some intermediate employee whose duty it was to repeat the signal.
Plaintiff’s own evidence shows that any such rule as he contends for, namely, that “no one shall give a signal to move the cars except the party who is doing the work,” is entirely unreasonable and impracticable.
Signals must of necessity often be communicated' by others, as plaintiff himself admits. A rule which would require no movement of the engine to be made, in such circumstances, except in response to a signal from one person, when he might be in a position where his signal could not be seen by the engineer, would be such an unreasonable impediment to the p'rompt dispatch of defendant’s business as a public carrier, that we do not consider the question whether or not defendant was bound to adopt it, debatable, or one upon which fair minded men would differ.
2. • But let us view plaintiff’s contention more broadly, treating it as a demand for some rule requir[130]*130ing the signal for a train’s movement, in such a case, to start from the workman engaged in handling the coupling machinery.
The printed rules (above copied) prescribe with much precision what signals are to be made to direct the necessary movements of trains. They do not expressly state by whom the signals are to be given; but it is fairly to be inferred that they are to originate with the individual employee entitled at the time to call for the required movement. The printed rules are intended for use by men acquainted with the business they undertake. Rules are not required to minutely direct every detail of the work which the employees are accustomed to perform properly.
Plaintiff himself said, in reply to the question, “who has to give the signal?”, “the man doing the work, for he can’t do the work without it.”
The proof on behalf of plaintiff plainly indicates that the workmen understood and acted upon the printed rules, touching signals, in accordance with the inference which those rules -naturally suggest; and that a custom or practice existed, conforming to the method of work which plaintiff claims should have been more formally expressed on paper and declared to be a rule.
He emphasizes the fact that a general custom, “system” or practice had long prevailed among the defendant’s workmen at Chamois to the effect above stated; and relies upon it as tending to indicate defendant’s negligence.
Plaintiff, in his cross-examination, stated his legal position with entire frankness in this way:
“Question. That is what you base your case upon, that the negligence of the company was its failure to print, in this time-card, the custom that the man who wanted to stop of start the train should give the signal? [131]*131That is your whole ground of complaint, is it not? Answer. Yes, sir.”
His petition puts forward substantially the same theory, for it is therein stated “that it is the custom for the person actually engaged in coupling cars to give all signals for the engine to move the ears in any direction; that this custom is merely in use by employees, and not because of any peremptory orders 1 from the defendant.”
There can be no doubt as to the exact nature of plaintiff’s claim, and the defendant insists that on the merits he has no standing in a court of law.
It must be borne in mind that on the former appeal certain principles were announced in the second division which we take as .the law of the case.
In Missouri the general rule is that parties are concluded on a second appeal by the rulings made on the first, in the same action. We do not now allude to cases finally adjudged on the first appeal, for any later litigation on the same subject would then fall within reach of the law of res judicata. But we refer to the effect of a prior decision in the same pending cause, with reference to theirule of stare decisis.
There is no immutable fiat of jurisprudence forbidding a change of rulings on a second appeal. One decision may discard a rule of law announced in another. Courts of last resort occasionally find it proper and just to overrule, and thus correct, their former declarations of legal principles. It sometimes is a matter of congratulation that justice can be finally done, in that manner, in the same cause, on a later appeal when necessary. It has been done, in this state, in several instances (Hamilton v. Marks (1876), 63 Mo. 167, and Keith v. Keith (1889), 97 Mo. 223, for example).
[132]*132- But they are exceptional and rather give point to-the general rule, which we have aboverstated, than impair it.
So we turn to the opinion on the former hearing-of this cause in the second division (110 Mo. 321) for guidance, so far as the Rulings then made are applicable to the facts presented in the present record.
It was then held that the evidence failed to establish a causal connection between the absence of such a. rule, as has been already described, touching the giving of signals by the person actually engaged in coupling ,or uncoupling cars, and the injury which befell plaintiff.
In the case now made we have the following facts, additional to those considered, namely: that the engineer caused the movement of the train which threw plaintiff between the cars; that he did so in obedience to a customary signal to that effect; that • plaintiff did not give such a signal; and that where a switchman, operating the coupler, is out of sight of the engineer, the necessary signals are transmitted to another, stationed within view of both, who repeats or forwards to the engineer any signal so given.
Do these new facts point to a different conclusion from that pronounced on the former hearing?
It is undoubted law in this state that it is the duty of an employer, engaged in so complicated and extensive an undertaking as the operation of a railway, to exercise ordinary care in his 'method or “system” of conducting that business. One part of that duty requires the enforcement of reasonable rules or regulations for its control, having due regard for the gaiety of employees engaged therein. (Reagan v. Railroad (1887), 93 Mo. 348).
The object and purpose of rules, however, are to-secure a certain mode of carrying on the master’s-work, namely, in the manner those rules prescribe. [133]*133Hence it has been held that it is not enough to adopt or promulgate a rule. The master must also use care to insist on its observance. Whittaker v. Railroad, (1891), 126 N. Y. 544.
Where a rule is habitually disregarded, for so long a time and in such circumstances as to justify the inference that the master knows and consents thereto, the mere existence of the rule will not absolve the master from a' liability which would exist in its absence. A dead rule is, in legal contemplation, no rule at all. Barry v. Railroad (1889), 98 Mo. 62; Railroad v. Nickels (1892), 4 U. S. App. 369.
The effect of the precedents last cited is that the master is responsible for the exercise of due diligence in directing the mode and manner of carrying on his business. But the perfect corollary of that proposition is that he is not liable where the mode in which it is carried on, by his authority, is reasonably safe, prudent and careful, howsoever that result may be brought about.
What greater protection would the plaintiff have had from the existence of a formal rule, directing the work to be done in the manner which the men already observed? How can it justly be said that there is need of a particular rule, or negligence in failing to declare it, when the practice which it would prescribe has already been adopted and is followed by the men to whom it would apply?
It is a serious 'error to suppose that by promulgating a paper rule the master would become responsible for its observance in every case which it fitted. A rule, such as is her.e in contemplation, is but a direction or command as to the mode of carrying on the work. The master is bound to the use of reasonable diligence in enforcing it; but he certainly is not an insurer of its observance.
[134]*134The practice of the men, the custom of the yard, in the case before us, admittedly required that signals for movements of the train, while the coupling machinery was being manipulated, should originate with the person assigned to handle that machinery. That practice or custom was a part of the mode of conducting defendant’s work, and its long continuance implies that it had the sanction of defendant. The employees were expected to conform to it as part of the usual course of the defendant’s business.
The practice of the workmen, no less than any possible rule, sanctioned the repetition of the first signal, in some circumstances, by another employee, in order to catch the eye of the engineer. The latter (who testified for plaintiff) declared that he stopped the locomotive and train in response to a lantern signal given by someone. If that signal, at the time plaintiff was hurt, did not originate with the plaintiff, there was a plain violation of the custom and practice of the yard, quite as much as there would have been a violation of the rule, had one existed to the same effect.
It was negligence of some sort on the part of some of the workmen engaged upon the train in failing to observe the practice or custom in use, touching the movement of trains. These workmen were fellow servants of plaintiff in a common employment, and for their negligence, in this particular, defendant is not liable.
A remark was made by Judge Thomas on the former appeal, that “it seems to be well settled, also, that rules adopted by the employees, not regularly prescribed, and obedience to which is not required by the company, will not excuse the company from the performance of this duty,” namely, of making needful rules for the safe prosecution of the business.
It does not appear, however, in the present record that the employees at Chamois wére not required to con[135]*135form to the practice or custom described. The evidence throughout plainly indicates the contrary, and that it amounted to a verbal rule or direction as part of defendant’s method of doing business, taken in connection with the printed rules, touching the giving of signals.
The first witness for plaintiff, who had been both switchman and yard-master there, testified, in his examination in chief, on this point, thus:
“Q. State whether or not the Missouri Pacific Railway Company had any rules or regulations for the government of its employees in making up trains and shunting and kicking off cars, for the warning of all persons liable to be injured; state, if you know? A.. I never saw any rule, if they have any, but it is understood amongst us in the yard that the man who is coupling or cutting off cars is to give the signal.”
# * * % *
“Q. Had the railroad company any system of signals published for use amongst its employees, for use in the yard at Chamois, to be used in cutting off cars, and for coupling and uncoupling cars from other cars? A. They had none published, except it was understood amongst the employees; the system was understood amongst us.”
The plaintiff himself testified that he had been taught the signals when he first went to work by “the yard-master and all the rest of the switchmen we worked with.” He does not claim that he was ever taught that the observance of the practice was optional or unobligatory. _ He nowhere in his evidence charges that the custom was not binding on the employees as a part of the routine of work in the yard, sanctioned by defendant. On the contrary, his real grievance is that the men did not “live up to it” at the time he was hurt, as appears in this passage from his testimony:
[136]*136“Q. If there had been any rule prohibiting that train from stopping until you gave the signal, what would have been the result! A. I think if they had lived up to it as they pretend to do it would have been otherwise.”
The case as now presented does not, therefore, fall within range of the remark of Judge Thomas above quoted. But we think, moreover, that learned judge (as the conclusion then announced by him shows) had no intention of holding that a custom, generally recognized and practiced by managers and workmen as the correct mode of conducting a certain business, could form the basis for a recovery against the master, simply because the practice had not been reduced to the form of a paper, or formal rule.
3. Had plaintiff’s evidence tended to show that the signal was given by the yard-master, a different question would arise; but, as the proof has no such tendency, we need not go into that subject.
Negligence is an affirmative fact to be established by proof. Although that proof may often be supplied by reasonable inferences from other facts in evidence.
The jury might, from the testimony already detailed, have found that some one of the men about ‘ the train gave the" stop signal; as an inference from the statement of the engineer that such a signal was given. The yard-master was near the train at the time, as was another switchman, besides plaintiff himself. This,, switchman, Mr. Dring, testified that he gave the signal; but, as his evidence was on behalf of, and favorable to, defendant in this regard, we can not take that statement into account as against plaintiff in determining the sufficiency of plaintiff’s case, though..he is entitled to any beneficial inference therefrom in determining whether his case should go to the jury.
[137]*137The testimony for the plaintiff that a signál was given, in the circumstances' stated, does not tend to identify the yard-master as the particular one of the three persons who might have made it. So that point drops out of view.
4. In no aspect of the case do we see that plaintiff’s position is improved by the facts developed at the last trial.
We are of opinion that no causal connection appears between the absence of such a rule as plaintiff insists upon, and the damage he has sustained, as declared on the firát appeal in this cause.
The custom or practice, recognized by all engaged in the prosecution of defendant’s business, as a direction for the conduct of the work, afforded plaintiff quite as much security and protection as the rule could have done. We hold that plaintiff’s injuries can not justly be ascribed to the want of such a rule as their juridical cause; and that the trial court should have given the defendant’s instruction in the nature of a demurrer to the evidence.
It follows that the judgment should be reversed {Carroll v. Transit Co. (1891), 107 Mo. 664), and it is so ordered.
Black, C. J., and Brace, J., concur. Macfarlane, J., dissents.