
    [No. 12303.
    Department Two.
    August 21, 1915.]
    John Martin, as Administrator etc., Appellant, v. Northern Pacific Railway Company, Respondent.
    
    Master and Servant—Negligence — Railroad Collision — Evidence—Sufficiency. The evidence is insufficient to sustain a verdict against a railroad company for the death of a conductor of a freight train, when a passenger train crashed into the caboose, where it appears that the freight train was behind time, and the conductor put out near a curve two torpedoes which were exploded by the passenger train, whereupon the engineer thereof complied with the rule in such case to reduce speed and look out for stop signal, by applying the “air” and slackening speed, and made every effort to stop when he saw the freight train ahead.
    Appeal from a judgment of the superior court for King county, Dykeman, J., entered May 11, 1914, upon granting a nonsuit, dismissing an action for wrongful death, tried to the court and a jury.
    Affirmed.
    
      E. F. Kienstra and Arthur E. Griffin, for appellant.
    
      C. H. Winders, for respondent.
    
      
      Reported In 151 Pac. 113.
    
   Fullerton, J.

On March 16, 1912, and for some time prior thereto, one Henry C. Martin was in the employment of the Northern Pacific Railway Company as conductor of one of its freight trains operated between Sedro-Woolley and Everett, both in the state of Washington. On the date named, Martin was killed by a passenger train, also operated by the railway company, which ran into the rear end of the train on which he was acting as conductor. This action was instituted under the Federal employers’ liability act by the administrator of Martin’s estate, to recover in damages as for wrongful death for the benefit of the father of Martin, who, it is alleged, was dependent upon him for support. At the trial, after issue joined, which was being had by the court sitting with a jury, the railway company, at the conelusion of the plaintiff’s case, challenged the legal sufficiency of the evidence to sustain a verdict or judgment against it. The challenge was sustained by the court, the jury discharged, and judgment afterwards entered against the plaintiff to the effect that he take nothing by his action. This appeal is from the judgment so entered.

The record shows that the accident happened between stations on the respondent’s line known as Clear Lake and Big Lake. When the freight train reached the first station named, it was behind its schedule time and left the station but seven minutes ahead of the time the passenger train was due thereat. It made a stop a short distance further on to put off some freight and lost further time. As the train proceeded on its way, it ascended a grade where it again lost time, and was, as one of the witnesses stated, then “running pretty close on the passenger’s time.” As the train neared a curve at the summit of the grade, the conductor put out two torpedoes on the track about sixty feet apart. These were exploded by the passenger train shortly after the freight train had turned the curve. Shortly thereafter, the passenger train also turned the curve, and before it was stopped, crashed into the caboose of the freight train, causing the death of the conductor as before stated.

It is the contention of the appellant that the negligence of the railway company rests in the conduct of the engineer of the passenger train. It is claimed that it was his duty on running over the torpedoes to get his train under control and look out for danger, and that the proximate cause of the death of the conductor of the freight train was the neglect of this duty by the engineer. But conceding, without deciding, that a right of recovery would follow if this conclusion were accepted, we are of the opinion that it hás no justification in the evidence. While a witness for the appellant did interpret the rules of the company with relation to torpedoes as the appellant states it, the rules themselves, which are in evidence, do not support the interpretation. Rule 15, under the title “Audible Signals,” recites that the “explosion of one torpedo is a signal to stop; the explosion-of two not more than 200 feet apart is a signal to reduce speed and look out for a stop signal.” The evidence in the record concerning the conduct of the engineer is that he obeyed this rule; that, upon running over the torpedoes, he applied the “air” and slackened speed, and made every effort to stop when he saw the freight train ahead of him.

It is needless to pursue the inquiry further. As we read the record, there is no evidence to justify a finding of negligence on the part of any of the employees of the respondent for which it is responsible to the representatives of the deceased conductor.

The judgment is affirmed.

Morris, C. J., Ellis, and Main, JJ., concur.  