
    No. 1,129.
    The Lake Shore and Michigan Southern Railroad Company v. Wilson, Administratrix.
    
      Negligence.—Proximate Cause.—Bailroad.—Master and Servant.— Open Switch.—Absence of Switch Light.—Killing of Fireman.— Violation of Buie by Engineer.—Where a railroad company negligently leaves a switch open, whereby a passenger train proceeding upon the main track in the night time runs into the switch and collides-with a freight train standing upon the side track, killing the fireman of the passenger engine, without his fault, the company is liable, its act being a proximate cause of the injury, although, the switch light having accidentally gone out sometime prior to the collision, the engineer did not stop his train upon observing that there was no light, thus violating a rule of the company providing that the absence of a light was to be regarded as a signal of danger.
    
      Same.—Contributory Negligence.—Absence of Sioitch Light.—Duty to Observe.—In such case the fireman is not shown to have been guilty of contributory negligence, although required by a rule of the company to keep a constant lookout ahead when not engaged in firing, so as to give notice of danger to the engineer, where it appears that his duties and circumstances at the time were such that he could not have discovered the absence of the switch light in time to have-given the engineer warning to stop the train, and where the engineer had notice that the light was not burning at least as early as the fireman could have communicated knowledge of such fact to him and had determined to proceed without stopping his train. Boss, J., dissents.
    From tlie DeKalb Circuit Court.
    
      J. Morris, R. G. Bell, J. M. Barrett and S. L. Morris, for appellant.
    
      L. M. Ninde, W. L. Penfield and IP. W. Ninde, for appellee.
   Davis, J.

George R. Wilson was a fireman in the service of the appellant on a passenger train. Th.e appellant, on the 6th day of December, 1889, at the station of Dune Park, negligently, in the evening, left the-switch open, and thereby caused the train upon which-lie was firing to run off the main track onto the side track, whereby said passenger train collided with a freight train standing thereon, and instantly killed said fireman without fault' on his part. The appellee recovered judgment in the court below for' two thousand dollars.

The lamp provided for this switch was duly lighted and placed in position on this evening, as a signal that the switch was closed and locked, but the light accidentally went out an hour and a half before the passenger train reached this point.

It was provided by the rules of the company that the absence of a light at the switch should be regarded as a signal of danger. The engineer in charge of the passenger train was familiar with the rule and also saw when within a half mile of the switch that the light was out, or, rather, he failed to see any light there.

It is, therefore, contended’ by counsel for appellant that the engineer was negligent under the circumstances in failing to stop the passenger train, and that his negligence was the proximate cause of the injury, and that the negligence of appellant in leaving the switch open was a remote cause. In this connection it is proper to suggest that if we understand the record it appears that if the lamp which was lighted and placed on the switch as a signal of safety had not accidentally gone out that night before the arrival of the passenger train, the collision and wreck, which occurred on the switch track, would not only have been invited, but would have been inevitable. Therefore, the question is suggested whether the fact that the engineer failed to stop the passenger train on the occasion constituted an efficient and direct cause of the injury, and whether such cause, under the circumstances, was the independent wrongful act of a responsible third person. In other words, does it conclusively appear that this omission of the engineer was wrongful, and that such act was ah intermediate and efficient cause disconnected from the primary act of negligence on the part of appellant and self-operatihg, which produced the injury. New York, etc., R. R. Co. v. Perriguey, 138 Ind. 414; Pennsylvania Co. v. Congdon, 134 Ind. 226.

In Coppins v. New York, etc., R. R. Co., 122 N. Y. 557, s. c. 19 Am. St. R. 523, the facts were substantially that the train on which Coppine was employed as a brakeman was derailed by reason of a misplaced switch, and he was seriously injured. Martin Schrom was an employe of the company, and it was his duty to shift and close the switches. He negligently left the switch open. The Court of Appeals in the discussion of the question presented, says: “If the evidence in the case justifies the conclusion that the engineer of the passenger train was negligent in not observing the target at the misplaced switch, or in running his train at a high rate of speed past the station in the absence of signals that the track was safe, that fact of itself is not available as a defence, if the negligence was established on the part of the defendant.” See, also, Stringham v. Stewart, 100 N. Y. 516.

In the Perriguey case, supra, Judge Howabd says: “If the negligence of the employer sets a cause in motion which continues until, in the end, it becomes a constituent element in bringing about the injury, so that the injury would not have occurred without the negligence of the employer; then, although the negligence of co-employes or other third persons may have contributed to the final result, yet the original negligence, still active to the end, is, in law, a proximate cause of the injury.” See Grand Trunk R. W. Co. v. Cummings, 106 U. S. 700.

In discussing the question of proximate cause in Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, Judge Elliott says: “The principle underlying this doctrine is that there must be some connection between the effect and the cause—between the injury and the wrong. It is not necessary, however, that there should be a direct connection between the wrong and the injury; it is enough if it appears that but for the wrong no injury would have occurred, and that the injury was one which might have been anticipated. Louisville, etc., R. W. Co. v. Nitsche, ante, p. 229; Milwaukee, etc., R. W. Co. v. Kellogg, 94 U. S. 469. It is, indeed, not necessary that the precise injury which, in fact, did occur should have been foreseen; it is sufficient if it was to be reasonably expected that injury might occur to some person engaged in exercising a legal right in an ordinarily careful manner.”

In Cincinnati, etc., R. W. Co. v. Lang, Admx., 118 Ind. 579, the court says: “If the master’s negligence is the principal cause of the injury, then he will not be absolved from liability, although the negligence of a fellow-servant may have concurred in causing the injury.”

In Pennsylvania Co. v. Burgett, 7 Ind. App. 338, this court said: “The general rule is that where a servant receives an injury occasioned, in part, by the negligence of the master and in part by the negligence of a co-employe, the servant, if without fault on his part, may maintain an action against the master for such injury.”

Counsel for appellant in this case concede that where the negligence of the master and his servant concur in producing an injury to another servant, the concurring negligence of the coservant will not relieve the master from liability, but their contention is that “Bickle’s negligence was the immediate, sole, and proximate cause of the injury complained of.”

Bickle was the engineer in charge of the passenger train.

Counsel say: “Could the leaving of the switch at Dune Park open by Demsky have caused the death of Wilson, had Bickle stopped when he discovered that the switch light was out, and not proceeded further until he learned that the switch was closed, or, if open, until he closed it?”

Again: “In the case in hearing, the death of Wilson was not directly attributable to the negligence of Demsky. It was the independent negligence of Bickle that made Demsky’s negligence injuriously fatal to Wilson.”

Counsel contend that the Perriguey case supra supports their position and is decisive of this case. The opinion in that case is founded upon the proposition that the engine in charge of Ferris was furnished with two good and sufficient hand lamps as a substitute for the regulation headlight, and that it was the duty of the engineer to light the headlight, whether it was the regulation light or the substitute hand lamps; and that the engineer failed in his duty to light the lamps; and that the proximate cause of the injury to Perriguey was the negligence of the engineer in failing to light the hand lamps.

Judge Hackney says: “In the present case the defect in the lamp of the headlight was a condition: the cause of the collision was the absence of the light. The absence of that light was not the defect, but was the failure of Ferris to light the hand lamps and place them in the headlight, from which the presence of his engine could be seen for the distance of five miles and the collision averted.”

In considering the opinions of courts, it is well to bear in mind the observations of Chief Justice Marshall: “It is a maxim, not 'to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the' judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may seem to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Cohens v. Virginia, 6 Wheat. -*265.

Again he says: “The positive authority of a decision is coextensive only with the facts on which it is made.” Ogden v. Saunders, 12 Wheat. *333.

The value as precedents of the cases hereinbefore cited, in the decision of the question before us, should be measured by the rule above stated. It is not always easy to determine what is the proximate cause of an injury. As Judge Hackney well says in the Perriguey case supra: “Oases may illustrate, but definitions are not sufficiently explicit for practical application.”

The general principles of the law in relation to proximate and remote causes, in actions growing out of negligence, are stated in the cases cited and are abundantly supported by the authorities to which reference is therein made.

In the light of these principles, was the negligent act of appellant the proximate cause of Wilson’s injury? We should not, in the language of Judge Hackney, in determining this question, “predicate our decision upon a shadow while abandoning the substance.” 138 Ind. 414, supra.

The ruíte of appellant, requiring a light at night at the switch, was intended as a signal that the switch was set and locked. When such light was not shown, its absence was intended as a signal of danger. When the light was not shown by the person whose duty it was to light and place the lamp in position, it was the duty of the engineer, under the rules of appellant, to stop his train until the condition of the switch was ascertained. It should be borne in mind that when the light was shown it was intended as a signal that the switch was set and locked, and that it was not then intended that the engineer should stop his train. In this case the lamp was duly lighted and placed in position. Suppose the collision had occurred while the lamp was burning. Could appellant have escaped liability on the ground that the act of the employe in showing the signal of safety was the proximate, and the negligence of appellant in leaving the switch open the remote, cause of the accident? We apprehend not.

On the other hand, can appellant shield itself from liability because the lamp which was lighted and placed in position as the signal of safety accidentally went out before the arrival of the train? In other words, was the act of the engineer, in failing to stop his train, under the circumstances of this case, a sufficient, intermediate and independent cause operating between the original wrong of appellant and the injury, to excuse appellant? The switch was negligently left open. Was there notan unbroken connection—a continuous operation between the wrongful act and the injury? If it was conceded that the engineer omitted or failed to perform his duty, in not stopping the train because the light which falsely announced that the switch was safe had accidentally gone out, and that such act on his part contributed as a cause to the injury, yet the fact remains that the wrongful act of appellant in leaving the switch <5pen was a natural, proximate, and direct cause which contributed to the injury.'

In the case of Clyde v. Richmond, etc., R. R. Co., 59 Fed. Rep. 394, decided in January, 1894, by the Circuit Court of the United States for the N. D. Georgia, which was an action by a fireman, similar in its essential featurés to the case in hand, the cause of the accident was the worn and defective condition of a rail, combined with the speed of the train, which was considerably greater than that which the schedule authorized. The negligence relied upon by the plaintiff was the worn condition of the rail. The negligence of the engineer in running the train at an improper rate of speed was shown by the evidence. It appeared that the excessive speed of the train would not have resulted in an accident had there been a proper and suitable rail at the point where the accident occurred, and that the worn and negligent condition of the rail would not have caused the derailment had the train not been running at an improper rate of speed. It was therefore contended that as the accident was caused by running the train at an excessive rate of speed there could be no recovery against the company.

The court, in the course of the opinion, says: “The rule clearly established at common law is that where an employe is injured by the negligence of the master in furnishing defective machinery and appliances, combined with the negligence of a fellow-servant, both contributing thereto, the master is liable.” It is contended that, even if the defendants were guilty of negligence, their negligence was not the proximate cause of the accident. If the worn condition of the rail was instrumental at all in causing the derailment, it was just as much a present and effective cause of the accident as was the improper rate of speed. It was not in any sense a remote cause, for whatever it contributed, it contributed at the time and place. Both the improper speed of the train and the worn condition of the rail (assuming the report of the master to be correct) were the proximate causes.”

In. this case, the most appellant can claim is that the engineer violated the rule of the company in failing to stop his train because there was no light shown at the switch. If he had stopped his train, there would have been no accident. In the Georgia case, if the engineer had not violated the rule of the company by running his train in excess of the schedule rate, there would have been no accident. The worn and defective rail would have been harmless if the train had not attempted to •pass over it at an extraordinarily high rate of speed. The open switch would not have caused a collision if the train had not run into it. Notwithstanding the act of the engineer in doing that in the absence of which the accident would not have happened, the court holds that the negligence of the company was a proximate cause of the injury.

If that case is correctly decided on the facts, it necessarily follows that the failure of the engineer to stop the train does not excuse the negligence of appellant in leaving the switch open. In our opinion, under the facts and circumstances of this case, the act of appellant in failing to set and lock the switch was a proximate cause of the collision.

This conclusion is in harmony with the decision of our own Supreme Court hereinbefore cited as we understand them.

The entire argument of counsel for appellant on the question of contributory negligence, is as follows:

“We think that the special findings of the jury show that the deceased, Wilson, was guilty of negligence contributing to his injury. It is impossible to believe that he did not know, or that, by the exercise of reasonable diligence he might not have known, that the switch light was out when a half mile east of the switch. It was his duty to keep a lookout for this. If he might have known that the light was out, it was his duty not ■only to call the engineer’s attention to the fact, but to .see to it that the engine and train were stopped until he ■could know that all was safe. We think that the special findings of the jury show this. Ue could have seen the danger signal by the exercise of reasonable care, and have requested the engineer to stop. Failing to do so, he was guilty of contributory negligence.”

One of the rules of the company in relation to the duties of said decedent were as follows: “When running upon the road, they must keep a constant lookout ahead, when not engaged in firing, so as to give notice to the engineer of any signals or indication of danger.”

The answers of the jury to interrogatories show that after the engine passed around the curve, approaching Dune Park station, Wilson was engaged in putting coal into the furnace of the engine, and that while he was so engaged he had to look into the furnace to see where to place the coal, and that the effect of the heat and bright flame in the furnace was to dazzle his eyes, and to some extent affect the power of his vision; that the engine was then running forty to forty-five miles per hour, and that when he got through feeding the furnace, some time elapsed before his eye could adjust itself to see objects or the absence of objects in the distance; that owing to the curve east of said Dune Park station, the engineer and fireman on an approaching train from the east, could not see whether the switch lights were burning or not at said station until after rounding the curve, and after said curve is rounded by trains moving westward the track is straight and somewhat down grade for a distance of half a mile; that said decedent was engaged ill feeding the furnace when the engine rounded the curve, and that he could not be on the lookout for switches while he was thus engaged, and that under the circumstances in which Wilson was placed at the time after he had finished feeding said furnace, and after his vision had recovered from the glare of the furnace so that he could discover whether said north switch light was burning or not, it was too late for him to give warning to Bickle.in time to stop the train and avoid the collision.

The jury further found that before Wilson had finished feeding the furnace, Bickle had discovered that the switch light was out, and determined to run on without checking the speed of the train; that owing to the speed at which the train was running, and its being down grade, the train would have required a distance of a quarter of a mile or more to be stopped; that by the rules of the appellant, Bickle was charged with the safety of the train and responsible, with the conductor, for keeping the train on time, and that it was the engineer’s duty ,to have his train under such command as to be able to-stop should the switch prove wrong, and that it was for the purpose of carrying out said rules and keeping his-train on time that Bickle did not check the speed of the train until it became too late to stop it and avoid the collision, and that by the rules of the company the fireman was placed under the immediate superintendence of the engineer, and was required to obey his reasonable directions in all matters concerning his duty.

The general. verdict affirms that Wilson was without fault. The special findings are not in conflict with this view. In fact, it is expressly found that his duties and circumstances were such at the time that he could not have discovered the absence of the switch light in time to have given warning to the engineer to stop- the train and avoid tlie collision. If he had discovered that the light was not burning, all he could have done was to give notice of this fact to the engineer, and it clearly appears that the engineer had the notice that the light was not burning as early at least as Wilson could have communicated such knowledge to him.

Filed Oct. 10, 1894;

petition for a rehearing overruled Dec. 11, 1894.

It is affirmatively found that the failure of appellee to give such notice did not contribute to the injury, because without reference to the notice the engineer had determined to proceed without checking the speed of the train.

In the light of the general verdict, and the answers of the jury to the interrogatories, it requires no argument, in the opinion of the writer, to show that Wilson was not guilty of any negligence on his part that contributed as a proximate cause to the injury.

There are other interrogatories which in some respects are apparently in conflict with those to which we have referred, but such conflict in the special findings with each other can not be resorted to for the purpose of overthrowing the general verdict. Where the answers to the interrogatories contradict or negative each other, the general verdict stands. It is a familiar rule that the special findings control only where they are in irreconcilable conflict with the general verdict.

Judgment affirmed.

Dissenting Opinion.

Ross, J.

From the facts in this case, it is evident that there were two causes, either of which might have brought about the injury for which damages are sought in this action, namely: The neglect of the brakeman, Demsky, of the freight train, to close the switch after his train had backed upon the side track and the negligence of the engineer and fireman of the passenger train to stop their train in obedience to the rules of the company.

It requires no argument to show that in the absence of either of these acts of negligence the accident would not have occurred. For if Demsky had closed the switch, as it was his duty to do, the passenger train would have proceeded along the main track and there would have been no collision. By this neglect of duty on his part the passenger train was thrown upon the side track and collided with the freight train, resulting in the death of the decedent. On the other hand, if the decedent and his engineer had stopped their train when they saw that the switch target was without a light, and had not attempted to pass the switch until assured that it was closed, as it was their duty to do under the rules of the company, the accident could not and would not have happened. Without the intervention of either of these causes the accident could not have occurred, and the decedent would not have been killed.

Conceding that the jury, by their verdict, found that the appellant was guilty of negligence in retaining in its service the brakeman Demsky after it acquired knowledge of his incompetency, it still remains to be determined whether or not his negligence in leaving the switch open was the proximate cause of the injury or whether it was the result of some other cause, either that of some third person or of the decedent himself.

' In an action where it is shown that two causes combined produced the injury complained of, both of which causes are proximate in their character, one being the result of the defendant’s negligence and the other an occurrence for which neither party is to blame, the defendant will be liable, provided the injury would not have been sustained except for bis negligence. Grimes v. Louisville, etc., R. W. Co., 3 Ind. App. 573, and cases cited.

It is a common, if not almost a universal, expression of courts, that every person is bound to anticipate the results which naturally flow from his acts, and for that reason is answerable for an injury resulting therefrom. But in the case of Milwaukee, etc., R. W. Co. v. Kellogg, 94 U. S. 469, Justice Strong, speaking for the court, says: “We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to this misfeasance or nonfeasance. They are not when there is sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. ’ ’

If a party does an act which might naturally produce an injury to another as its consequence, and before any such injury results, a third person does some act or omits to perform some duty, and this act or omission of the third person is the immediate cause of an injury which would not have resulted except for such act or omission, the act or omission of such third party is the immediate or proximate cause, and the act of the first party but an indirect cause; the causal connection between the act of the first party and the injury is broken by the interposition of the act or omission of the third party. Washington v. Baltimore, etc., R. R. Co., 17 W. Va. 190; Pike v. Grand Trunk R. W. Co. of Canada, 39 Fed. Rep. 255; Insurance Co. v. Tweed, 7 Wall. 44; Milwaukee, etc., R. W. Co. v. Kellogg, supra; Lewis v. Flint, etc., R. W. Co., 54 Mich. 55; Curtin v. Somerset, 140 Pa. St. 70; Wharton Neg. (2d ed.), sections 134 and 438.

In this case the only question to be determined is, what was the proximate cause of the collision resulting in decedept’s death? The proximate cause is not necessarily the last preceding cause which conduced to the happening of the event, but it is the cause closest allied to the event without which it could not have happened. It is impossible, as is clearly demonstrated by the opinions of our most learned jurists, to state a fixed rule that can be applied in determining the proximate cause in all cases—much often depends upon the circumstances of the particular case, and what is, or what is not, a proximate cause will often have to be determined upon considerations of sound judgment and enlightened common sense, without the aid of any certain or infallible rule.

In Marble v. Worcester, 4 Gray, 395, Shaw, C. J., says: “The whole doctrine of causation, considered in itself metaphysically, is of profound difficulty, even if it may not be said of mystery;” and, again, “Perhaps no event can occur, which may be considered as insulated and independent; every event is itself the effect of some cause or combination of causes, and in its turn becomes the cause of many ensuing consequences, more or less immediate or remote. The law however looks to a practical rule, * * * and on account of the difficulty in unraveling a combination of causes, and of tracing each result, * * * to its true, real and efficient cause, the law has adopted the rule * * * of regarding the proximate, and not the remote cause of the occurrence which is the subject of inquiry.”

It appears to the writer that to solve the question of proximate cause in this case is a matter of little difficulty, as I hope to make clear.

To determine the cause efficient, we have but to consider what each of the parties were bound to anticipate would be the result of their acts and omissions, and when that is understood, we have solved the main difficulty which presents itself.

The appellant was bound to know that trains proceeding along the road could not pass the switch when open. It also knew that under its rules governing the operation of its trains, no train was allowed to attempt to proceed with a switch in that condition, and it had a right to assume that those in charge of the passenger train would do their duty and would not attempt to proceed when the switch was open. The decedent knew that if he attempted to proceed with the switch open a collision must inevitably occur with whatever might be upon the side track.

The appellant was not bound to anticipate the happening of the accident by the omission of its duty to close the switch, unless it was also bound to anticipate that the decedent and his engineer would fail to do their duty. The law imposes no such duty on appellant, but only requires that appellant answer for the results which naturally flow from its negligence. It could not be expected that the decedent and his engineer, knowing that Demsky had left the switch open, would not do their duty and stop their train. On the contrary, it' was to be presumed that they would not, knowingly, cast themselves in the way of a danger which must inevitably result in injury.

“Where one party has been negligent, and a second party, knowing of such antecedent negligence, fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible, * * the negligence of the second party is the sole proximate cause of the injury.” Bostwick v. Minneapolis, etc., R. W. Co., 51 N. W. Rep. 781.

The above language was quoted with approval by our Supreme Court in the recent case of New York, etc., R. W. Co. v. Perriguey, 138 Ind. 414, which was an action to recover for an injury to an employe, alleged to have been the result of the company’s negligence in failing to furnish a headlight on an engine, by reason of which it collided with another train.

The facts in that case disclosed that while the railroad company was negligent in failing to furnish a good and sufficient headlight, which, had it been furnished, might have averted the accident, yet the facts disclosed that those in charge of the train in violation of an order of the company run their train out upon the main track, from a side track where they were to await the arrival and passage of the other train. From these facts the court held that it was not the negligence of the company-in failing to furnish a headlight that was the proximate-cause of the collision, but the negligence of the servants in running the train out on the main track in violation-of its order.

Again, in the case of McGahan v. Indianapolis Natural Gas Co., 140 Ind. 335, which was an action brought by the appellant to recover for an injury caused by the explosion of natural gas which had been negligently permitted to escape in the cellar of one Kilburn, and after repeated requests, and a promise by the company to shut off the gas so that no more would escape, McGahan, who had been employed by the owner of the property to find the leak, and repair the pipe in the cellar, went into the cellar with a lighted candle, and the accumulated gas exploded causing the injury. The court after reviewing the facts held that the failure of the company to turn the gas off; and thus permit its escape and accumulation in the cellar was not the proximate cause of the injury, but that the negligence of MeGahan in going into the cellar with a lighted candle was the proximate cause.

If these cases are to stand, and be recognized as authority, I think them decisive of the question presented in this case as to the proximate cause of the decedent’s injury. In fact it was conceded by counsel for appellee in arguing this case orally before this court, that the question presented in this case was identical with that in the case of New York, etc., R. W. Co. v. Perriguey, supra, and that if the original opinion in that case, which had been rendered prior to such oral argument, was to stand it was decisive of this case, and the judgment would have to be reversed.

There is some conflict in the answers to the interrogatories as to just when the decedent first saw that the light on the switch target was not burning, but that he knew it when his engine was mpre than a quarter of a mile distant I think is undisputed, and also that after he became cognizant of the danger he made no effort to stop his train, neither did he attempt to slacken its speed.

Under the rules-of the company, made for the operation of its trains, and with which the decedent was familiar, the jury find it was the duty of both the decedent and his engineer to be vigilant, and to act with the utmost promptness in stopping the train whenever anything which might be taken as a signal of danger was seen. They were to take no risks.

If signals of safety were not shown at any point where they ought to be, it was the duty of the fireman to inform the engineer, and his duty to stop or go carefully until assured that it was safe to proceed. That they discovered the danger, the engineer when more than half a mile away and the fireman when between a quarter and a half mile distant, and that they made no effort either to stop or even slacken the speed of the train, which was then running at the rate of forty miles per hour, is also found by the jury, and they find further that the train was equipped with air brakes and other appliances for stopping, which were so constructed and arranged as to be operated by either the engineer or fireman, which would have enabled those on the engine to have stopped the train within a quarter of a mile.

Without a rule of the company imposing it as a duty those in charge of and operating a locomotive hauling a passenger train should exercise the greatest vigilance for the safety not only of themselves, but of those helplessly in their charge, who are so situated as to be without the means of knowing of approaching danger or the power to avert it. The instinct of self-preservation would lead one to exercise -at least ordinary care, and to fail in the performance of this duty is not merely evidence of negligence, but is of such a degree as to evince a total disregard of consequences.

When an employe disobeys a rule established by his employer for the carrying on of his business, and the disobedience proximately contributed to the employe’s injury, he can not recover although the employer’s negligence also contributed thereto. Pennsylvania Co. v. Whitcomb, Admr., 111 Ind. 212; Matchett v. Cincinnati, etc., R. W. Co., 132 Ind. 334.

For it is well settled in this State that one seeking to recover for an injury by reason of the negligence of another must show affirmatively not only that the defendant’s negligence caused the injury, but that he himself in no way contributed thereto. That is, that he omitted no duty which, if observed, would have prevented the injury. Toledo, etc., R. W. Co. v. Brannagan, Admx., 75 Ind. 490; Stoner v. Pennsylvania Co., 98 Ind. 384; Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31; Indiana, etc., R. W. Co. v. Greene, Admx., 106 Ind. 279; City of Fort Wayne v. Coombs, 107 Ind. 75, and cases cited.

For where two causes combined produced an injury, one of which causes is the result of the negligence of the injured party himself, he can not recover damages from the party whose negligence produced the other cause, for the reason that the injured party’s own negligence was a factor in bringing about the result.

The debatable question that now confronts us is: Did the failure of the decedent to stop or slacken the speed of his train in anyway contribute to his injury? A sufficient answer to this is, that had he stopped his train as he could and should have done, he would not have been injured. This failure on his part to do his duty was the direct cause of the collision which resulted in his death. Whether the failure to stop the train was the disobedience of the decedent or his engineer, Bickle, such disobedience was, nevertheless, the direct and proximate cause of the collision which resulted in decedent’s injury. Under such circumstances the appellant is not liable. I am compelled, therefore, to dissent from the views expressed by the majority of the court.

Filed Oct. 10, 1894.  