ders were issued by the superintendent, and, under the circumstances, that he was required to disregard orders to the contrary from the conductor. We are satisfied that the position of appellant in this respect cannot be sustained. Conceding that the brakeman was subject to the general rules and orders issued by the general manager or superintendent, yet if, at a subsequent time, on a special occasion, he was directed by the conductor to do a specific thing, which was done, in our opinion he was justified in obeying the order of the conductor, unless the dangers were so apparent that he went into that position with his eyes open. It does not conclusively appear that the danger was so apparent that respondent must be held to have assumed the risk notwithstanding he was under orders from the conductor."

The effect of the general rule of a railroad company that engine wipers. are not to work upon an engine while in motion is nullified by a special direction to do so by the foreman of the roundhouse. Forbes v. Atchison, T. & S. F. R. Co. (1917) 101 Kan. 477, 168 Pac. 314.

A brakeman who fails to put out a flag to protect the train, as required by the printed rules of the railroad company, is not guilty of contributory negligence so as to prevent a recovery for injury received in a resulting collision, where he is directed by his conductor to proceed without putting out a flag, and has no opportunity to carry out the rules. Crow v. Northern P. R. Co. (1907) 45 Wash. 605, 88 Pac. 1022.

And in McGhee v. Campbell (1900) 42 C. C. A. 94, 101 Fed. 936, a railroad section foreman was killed when a train struck a handcar upon which he was riding with his men before daylight on a dark morning, in violation of a rule of the railroad company prohibiting the running of a handcar after dark without special permission, and it appeared that the section foreman was in the habit of going to work with his force about daylight, and that the night before his death he received a telegram from the track supervisor, his superior officer, directing him to

bring his force in the morning to a place which would take him about an hour to reach on the handcar. It was held that such telegram, with the other facts, made his contributory negligence a question for the jury, and a finding of the jury that he was free from negligence was upheld.

2. Operation of trains.

Where the orders given to an engineer by the governing or superior officer of the railroad company require him to run in a different manner from that described in its general rules, contributory negligence cannot be imputed to the engineer from his disobedience of such rules. Pennsylvania Co. v. Roney (1883) 89 Ind. 453, 46 Am. Rep. 173.

And it was held in Norris v. Illinois C. R. Co. (1900) 88 Ill. App. 614, that an engineer who ran his train in violation of a rule of the railroad company requiring inferior-class trains to be run carefully through the railroad yards, could not be said as a matter of law to have been guilty of contributory negligence, so as to defeat his recovery for injuries received in a collision with another engine in the railroad yard, where his disobedience of such rule was due to an order of the

yardmaster, who had authority to discharge him, and whom he was bound to obey.

Where the rules of a railroad company for the running of freight trains, contained in what are called "time cards," were changed so as to require through freight trains to pass each other at a different point than previously, and the engineer of one of the trains, upon arriving at the new passing point, stopped there, and being uncertain as to whether the new time had gone into effect, inquired of the conductor, and was told that it had not, and was ordered by the conductor to proceed, and a collision resulted in which the engineer was injured, his violation of the new rules, at the command of the conductor, will not prevent him from recovering for his injuries. Stevens v. Little Miami R. Co. (1850) 1 Ohio Dec. Reprint, 335.

An engineer of a freight train who,

contrary to rules of the railroad company, starts his train from a station upon the command of his conductor, who has been appointed pilot for the trip, the engineer not being acquainted with the road, is not guilty of contributory negligence, although the rules giving the conductor the control of the movement of trains give the engineer the right to disregard his or ders, if contrary to the rules or dangerous to person or property. Wilson v. Southern R. Co. (1906) 73 S. C. 481, 53 S. E. 968.

And where a rule of a railroad company provides that a train must not pass from a double to a single track until it is ascertained that all trains due, which have the right of way, have arrived or left, and another rule provides that enginemen must obey the conductor's orders as to starting their trains, unless such orders involve violation of the rules or endanger the train's safety, an engineer who, upon the command of the conductor, proceeded to pass from a double to a single track, knowing that the regular train passed over the single track about that time, is not guilty of contributory negligence preventing his recovery for injuries from colliding with such train, since the exception in the rule requiring him to obey the conductor's orders depends upon the knowledge or reasonable belief of the engineer, of the danger or impropriety of the conductor's order, and the rules do not make it imperative upon him to leave his engine in order to verify its accuracy. Grand Trunk R. Co. v. Miller (1902) 32 Can. S. C. 454.

But an engineer of a freight train, who leaves a station in obedience to an order of the conductor, in violation of the rules of the railroad company, is guilty of contributory negligence as matter of law so as to defeat recovery for his death in a resulting collision, where another rule of the company provides that the conductor will have charge and control of a train, and of all the persons employed on it, and be responsible for its movements while on the road, except when his directions conflict with the rules, or involve risk or hazard, in either of

which cases the engineer will be held alike accountable. York v. Chicago, M. & St. P. R. Co. (1896) 98 Iowa, 544, 67 N. W. 574.

And in Missouri, K. & T. R. Co. v. Lenahan (1917) Okla. 171 Pac. 455, where the engineer of a freight train, in violation of the rules of the railroad company, but in obedience to the order of his conductor, ran upon the time of a passenger train, and collided with it, and was killed, the court held erroneous an instruction to the effect that, if the jury found that the plaintiff's train was under the charge of the conductor, and that the plaintiff was subordinate to the conductor and subject to his orders, and that the conductor ordered the train to go out upon the main track, and the plaintiff, in taking the train out upon the main track, obeyed the orders of his superior officer, they might consider this as tending to show whether or not the plaintiff contributed by his own negligence to the act which caused his death. The court stated, as the reason for this holding, that there was a strong intimation in this instruction that the plaintiff would be justified in obeying the orders of his conductor, rather than those of the train despatchers and the rules of the railroad company, and that the uncontradicted evidence was to the effect that the rules of the company were binding upon the engineer and conductor alike, and that the plaintiff had no right to move his train in violation of the established rules of the company, even upon the direct order of his conductor, the rules applicable providing that "both conductors and enginemen are responsible for the safety of their trains," and that “all trains will be run under the direction of the conductors, except when they conflict with rules, or involve risk, in which case the enginemen will be held equally responsible."

Where a conductor of a passenger train starts the train in violation of a rule of the railroad company requiring him to wait for another train which had the right of way, upon the order of his superior, issued under misapprehension and forgetfulness of the

rule, which the conductor could have corrected, and which order the conductor knew would result in a collision with the other train, and would likely involve serious consequences, the conductor, in acting upon such order without inquiring the reasons for it, was guilty of contributory negligence as matter of law. Wescott v. New York & N. E. R. Co. (1891) 153 Mass. 460, 27 N. E. 10. The court further said that if the conductor, knowing that the service was dangerous, undertook it under the order of his superior, through fear of losing his position if he refused, he must be held to have assumed the risk.

And an instruction by the train master to an engineer to make a run within a certain time, which requires fast traveling, does not modify or dispense with a standing rule of the railroad company, requiring engineers to use great care in approaching a station. Illinois C. R. Co. v. Neer (1887) 26 Ill. App. 356. The engineer in this case ran his train into another train standing at a station, and was killed; a judgment of damages for his death was reversed, and, upon a new trial, a judgment was rendered again for the engineer, which was again reversed in (1889) 31 Ill. App. 126, the court again holding that the rule was not modified or suspended by the instruction of the train master; but such judgment of reversal was reversed in (1891) 138 Ill. 29, 27 N. E. 705, upon a question of practice, without mention of the point annotated, and thereafter the case was again heard by the appellate court, and, on appeal to the supreme court, the reversal of the judgment for the engineer was affirmed in (1894) 151 Ill. 141, 37 N. E. 700, where it was held that, the appellate court having found in its judgment that the engineer acted with negligence, and did not use ordinary care, and that there was no negligence on the part of the railroad company, there could be no recovery.

3. Place of duty.

The violation by a rear brakeman of a freight train, of the rule requiring him to ride in the caboose and al

ways to remain at the rear of the train, will not defeat the right to recover for his death from being thrown from the train while walking forward upon the top of the cars, where he was acting in the reasonable execution of the order of the conductor, whose orders he was bound to obey, to bring to the front of the train the car seal press. Castonia v. Maine C. R. Co. (1917) 78 N. H. 348, 100 Atl. 601.

And in Parks v. St. Louis S. W. R. Co. (1902) 29 Tex. Civ. App. 551, 69 S. W. 125, holding that the contributory negligence of a brakeman was for the jury, when he was in the cupola of the caboose, contrary to the rules of the railroad company, which required him to be upon the top of the caboose when entering stations, and there was evidence that had he been on top of the caboose he might not have been injured by the jar of the train, which threw him to the floor of the caboose and injured him, and the testimony was conflicting as to whether he was ordered by the conductor to remain in the caboose, the court said that if it was true, as he testified, that he was directed by the conductor to remain in the caboose, then, under the rules of the railroad company, he was required to obey the instruction, and hence was in the place of his duty, from which there is the implication that, if he disobeyed the rule under the counter direction of the conductor, he would not be guilty of contributory negligence.

Where, in violation of a rule requiring all brakemen to be on top of a train while descending grades, a brakeman upon a cold night, while the train is descending a grade, is directed by the conductor to ride in the cab of the engine, and a side rod of the engine breaks and causes injuries to the brakeman, he cannot be charged with contributory negligence. for riding in the engine, in obedience to the directions of the conductor. Hurlbut v. Wabash R. Co. (1895) 130 Mo. 657, 31 S. W. 1051. The court said that under the rules the conductor had authority to direct the brakeman in respect to his duties in being on top of the train, and that the instruc

tions to the brakeman to ride in the cab were authorized and proper.

And in Chicago & E. R. Co. v. Kiracofe (1911) 48 Ind. App. 407, 95 N. E. 1117, where a brakeman, upon command of the engineer, went upon the pilot of the engine to flag another train, and was injured by the collapse of the pilot, the court upheld an instruction that, if the railroad company laid down rules and put them into the hands of the plaintiff, it was his duty to obey those rules in the discharge of his duties; but if conditions should arise when the rules could not be followed, then it was the duty of the employee to take such steps as an ordinarily prudent man would take to prevent loss of life or destruction of property.

And a yard brakeman is not guilty of contributory negligence as matter of law in riding, within the yard limits, on a passenger engine, in violation of a rule of the railroad company, where he was directed to do so by the yardmaster. Feneff v. Boston & M. R. Co. (1907) 196 Mass. 575, 82 N. E. 705. The court said: "The rules of this road conferred upon the yardmaster authority not only over the yard itself, but over employees when engaged therein in the train and yard service, and it was by his express order that the plaintiff had been directed to ride on any locomotive that might furnish the desired accommodation. The rule, with which the plaintiff was familiar and upon which the defendants largely rely, which directed engineers not to permit any person except the fireman and others necessarily there in the discharge of their duty to ride on the engine without a pass from the general manager, must be read in connection with the rules relating to the powers of the yardmaster. When thus construed, it is manifest that, within the limits of the yard, his general authority and right of supervision had not been curtailed."

4. Switching.

The contributory negligence of a brakeman is a question for the jury, where he takes his position on the pilot of the engine, by the direction

of the conductor and engineer, in order to aid them in attempting to make a running switch, which is expressly prohibited by the rules of the railroad company. Louisville Southern R. Co. v. Tucker (1899) 105 Ky. 492, 49 S. W. 314.

Likewise, the contributory negligence of a brakeman is for the jury, where, while trying to uncouple the cars to be switched off, in obedience to the order of the engineer and conductor, he was run over by being thrown under the cars by the negligence of the engineer and conductor in starting up the engine too suddenly, and without warning, and without a signal from nim, in an attempt to make a flying or running switch, prohibited by a rule of the railroad company because of its danger to those who engage in it. Illinois C. R. Co. v. Jones (1904) 118 Ky. 158, 80 S. W. 484.

And if a brakeman, under the directions of the conductor of his train, and in the presence and with the knowledge of the division superintendent of the railroad, who has charge of its management and directs the employees of the railroad company in the performance of their duties, opens and adjusts a switch for a long time in a different manner than that prescribed by the established rules, such rules are deemed changed or modified as to the brakeman obeying the orders of his conductor, with the knowledge and sanction of the division superintendent, so that the brakeman, injured in opening the switch, cannot be held guilty of contributory negligence as a matter of law, so as to bar a recovery for his injuries. Kansas City, Ft. S. & G. R. Co. v. Kier (1889) 41 Kan. 661, 13 Am. St. Rep. 311, 21 Pac. 770.

5. Coupling cars.

A brakeman, who, in violation of the rules of the railroad company, goes between cars to couple them upon the order of his conductor, is not guilty of contributory negligence. Carson v. Southern R. Co. (1903) 68 S. C. 55, 46 S. E. 525. The jury found a verdict for the brakeman, and judgment in his favor was affirmed by the Supreme Court of the United States in

(1904) 194 U. S. 137, 48 L. ed. 907, 24 Sup. Ct. Rep. 609, without mention of this point.

The command of the conductor of a freight train to a brakeman to go between the cars, when he cannot couple them otherwise, is a waiver of a rule of the company prohibiting brakemen to go between cars under any circumstances. Mason v. Richmond & D. R. Co. (1892) 111 N. C. 482, 18 L.R.A. 845, 32 Am. St. Rep. 814, 16 S. E. 698. And the same doctrine was upheld in a later appeal of the same case in (1894) 114 N. C. 718, 19 S. E. 362; but it was there held that the command did not relieve the brakeman from his contributory negligence in going between the cars in coupling them, several months later, when working under another conductor who did not order him to do so. The reason for the first holding is given in the former appeal in the following language: "The question involved in all such cases is whether the subordinate feels constrained to obey the orders of his superior, though apparently obedience will be attended with peril, rather than run the risk of defying his authority. The fact that the conductor has the power to employ and discharge brakemen on his train is but evidence to show that the brakemen fear to disobey his commands. The existence of such authority, in the very nature of things, cannot be made the invariable test of the servant's culpability. If the servant never knows or communicates with a higher official than the conductor, and receives every order upon which he acts in the line of his duty, from him as a superior, as it is a matter of universal knowledge is the true state of facts on all railroads, is it not reasonable for the laborer to conclude that the conductor has power to waive the requirement of the rule that he has signed, and that if he refuses to couple cars in accordance with his direction, and thereby delays the departure of a train, he may, at least, be reported for inefficiency and discharged from the service of the company? If the servant acts upon well-grounded fear of losing his place, 23 A.L.R.-21.

the reason of the rule would be met, and he should be declared free from culpability, unless the plaintiff recklessly exposed himself to manifest peril, or chose to subject himself to danger when another safe mode of discharging his duty was open to him.

The command of the conductor to the brakeman to go between the cars, when he could not couple them otherwise, was one to which unhesitating obedience was expected and demanded. The giving of such an order by the conductor ought, upon the plainest principles of right and justice, to be declared a waiver of the regulation by an officer who is the representative of the corporation. That a brakeman feels impelled to obey the orders of the conductor, no observant person can deny; and, since we can take judicial notice of a relation so common and well understood, it would be a voluntary preference of fiction to fact were we to adhere to an arbitrary rule founded in a supposed reason that we know does not exist. A brakeman does not contract to incur the risk of serving under a conductor who will order him to disobey the regulations of the company, and leave him to choose on the instant between observing the rules and obeying his superior."

In Richmond & D. R. Co. v. Rudd (1892) 88 Va. 648, 14 S. E. 361, a brakeman, who in violation of the rule of the railroad company attempted, upon the command of the conductor, to uncouple cars without a stick, it being impossible to uncouple the cars. with a stick, was held not guilty of contributory negligence, and the judgment entered upon a verdict in his favor was affirmed.

And a brakeman, who, ordered by the conductor to couple cars by going between them, protests because of the danger, but finally goes between the cars to couple them, on the promise of the conductor to protect him, and is injured because of the negligence of the conductor in having the engineer back the cars upon him, is not guilty of contributory negligence so as to prevent a recovery because he violated a rule of the railroad company,