train is obstructed in which case both trains are responsible in case of collision, but an inferior train must at all times clear or protect against a superior train."

It was the contention of plaintiff that his train (extra 174) was standing at a station (Hoyt) and was therefore protected under the terms of rule 91c; that under said rule it was the duty of the engineer of extra 399 to approach Hoyt in such a manner as to render a collision impossible and, therefore, a collision having occurred resulting in injury to plaintiff, he could recover therefor against the defendant because of the negligence of his fellow-servant (the engineer of extra 399) under the provisions of Act 104, Public Acts of 1909.

Defendant's contentions are:

First. That, even conceding the accident and consequent injury to plaintiff was the direct and proximate result of the negligence of Hopkins, the engineer of extra 399, there can be no recovery because Act No. 104 of the Public Acts of 1909 is unconstitutional.

Second. That, independent of the question of the constitutionality of the statute, the defendant was entitled to a directed verdict because: (a) "Hoyt" is not a station within the meaning of rule 91c; and (b) if "Hoyt" is a station within the meaning of that rule plaintiff's train was not standing at that station at the time of the collision, but was standing between stations and was therefore governed by the provisions of rule 99.

Third. It was the duty of the court to construe and apply the rules.

Fourth. Plaintiff's failure to obey rule 99 was the proximate cause of the accident.

Fifth. The court erred in the charge as given.

Sixth. The court erred in the admission and exclusion of testimony.

BROOKE, J. (after stating the facts). Consideration will be given to the positions of defendant in their order.

First. This question is now settled adversely to the contention of defendant. Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347). In reaching the conclusion set out in the opinion in that case, this court gave careful consideration to the arguments upon that question contained in defendant's brief in the case at bar.

Second. (a) Was "Hoyt" a station within the meaning of rule 99c? We are disposed to hold that it must be so considered. It is true that the ordinary business usually transacted at a railway station was not done by the defendant at this point. Many of the characteristics of a station, however, it unquestionably had. In the first place it was designated as a station on defendant's time card, a telegraph operator was maintained there and books were kept in which all second, third class and extra trains were required to register. This rule necessitated the stopping of the train, or at any rate compelled it to run so slowly that the conductor could jump off, register, and then board it while in motion. Moreover it was situated at a point within the yard itself. The yard limit on the Toledo main line was fixed at a point 4,900 feet south of the Michigan Central crossing. The appellation "Hoyt" as shown by the exhibits seems to have been applied to the signal tower only which is located directly where the two roads cross. While the signals were operated from the tower and the books were kept there, we think it cannot be said that the appellation covers the structure only but should be applied reasonably to include the environment. A further reason for regarding "Hoyt" as a station is furnished by the fact that the defendant issued running orders to its trainmen from Port Huron (or other points) to

"Hoyt." The dictionary definition of the word “station" is not of much aid in determining the character of the place in question. Whatever the technical or restricted meaning of the word may be, in construing rule 91c, it certainly would cover any place where trains usually or ordinarily stopped. The very purpose of the rule is to protect trains at such points from the possibility of collision from the rear. No train can make the crossing unless the target is set in its favor. If the target stands against it as it did in the case of the plaintiff's train on the morning in question, the train must wait until the obstruction is removed and the signal to proceed is given. At such a point, therefore, there is always a possibility that a train will be held up, and the engineer of a train governed by the rule is bound to take such precaution as is therein prescribed to avoid a collision.

(b) Was plaintiff's train at the station? The rule (91c) provides that:

"All extra and delayed third class freight trains must pass into and through all stations and must approach side tracks, water tanks and fuel stations with train under control expecting to find a train at such point. Speed must be reduced so that it shall not be possible to strike any train that may be within the station switches or that may be taking fuel or water."

It is said that this train was not at the station, that it was not within the station switches, and that it was not within the yard limit as there is no post on the Port Huron main line marking such limit. The engine of plaintiff's train stopped at a point about 100 feet south of the home signal. This was practically as close as it could go to the signal tower so long as the target was set against it without being derailed. We think the word as used in the rule should be held to be broad enough to cover so much of the track adjacent to the structure as is commonly used

by trains when they are compelled to stop by the adverse signal. It is true the train was not within station switches but it was in the immediate vicinity of side tracks in approaching which the rule commands caution.

We are of opinion, too, that it must be said that plaintiff's train stood within yard limits at the time of collision. While there was no post on the Port Huron main line defining the yard limit there was such a post on the Toledo main line, and it was located some 3,000 feet south of the point where the rear end of plaintiff's train stood at the time it was struck. It seems scarcely reasonable to say that a train standing upon the Toledo main line would be protected because within the yard limits while one upon the Port Huron main line, only a few feet distant and upon the same right of way, would not be so protected.

Third, fourth and fifth. We quite agree with counsel for defendant that it was the duty of the trial court to construe and apply the rules so far as was possible under the facts of the case. Great Northern R. Co. v. Hooker, 170 Fed. 154, 95 C. C. A. 410; Northern Pacific R. Co. v. Cummiskey, 137 Fed. 508, 70 C. C. A. 92.

This court has held that the violation of a rule by an employee where such violation is the proximate cause of the accident is negligence as a matter of law. Enright v. Railway Co., 93 Mich. 409 (53 N. W. 536); Whalen v. Railroad Co., 114 Mich. 512 (72 N. W. 323); Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W. 23); Veit v. Railroad Co., 150 Mich. 358 (114 N. W. 233); Moyer v. Railroad Co., 159 Mich. 645 (124 N. W. 542).

There is some testimony in the record which indicates that it was snowing at the time of the accident. There is also some difference of opinion as to the condition as to light or darkness at the moment of col

lision. It is unquestioned that plaintiff's train stood at a point in the straight track just beyond a curve. Whether these conditions imposed a duty upon plaintiff to protect the rear of his train under rule 91c was, we think, fairly a question of fact for the jury under proper instructions. Upon this point the court charged as follows:

"The essential questions of fact for your determination are (1) whether or not the defendant company was guilty of negligence that was the proximate cause of the accident. (2) Whether the plaintiff himself was guilty of contributory negligence that was the proximate cause of the accident. (3) Whether the negligence of the defendant and the negligence of the plaintiff concurred to produce the accident. And if you find that the negligence of the defendant and the contributory negligence of the plaintiff both concurred in producing the accident, then you are to determine from the proofs whether the contributory negligence of the plaintiff was of less degree than the defendant's negligence; and that means, of course, the negligence of the engineer, Hopkins. You are further instructed that the negligence of either the plaintiff or defendant is the proximate cause of the accident, if you find from the proofs that it was the reasonable, natural, and probable cause that in itself produced the accident. In determining these questions of fact if you find that plaintiff's negligence was the proximate and moving cause of the accident and of equal or greater degree than the negligence of defendant, then the plaintiff cannot recover. If, however, you find that the negligence of the defendant and the contributory negligence of the plaintiff concurred to produce the accident and you also find as a fact that the negligence of the plaintiff was of a lesser degree than the negligence of the engineer, Hopkins, then the plaintiff may

recover.

"So far as it relates to train No. 174,240 upon which plaintiff was injured, and also to No. 399 in charge of engineer Hopkins, Hoyt was a station point for the purpose of registering these trains. Under the rules of the company and the time-table introduced in evidence, it was the duty of Conductor Hudson, in charge