Opinion of the court by
JUDGE SETTLE
Affirming.
This action was instituted in the Henderson circuit court by the appellant, Farmers’ Bank & Trust Oompany, as the administrator of Walter Early’s estate, to recover damages for the alleged negligent killing of the deceased by the servants and employes of appellee .in charge of one of its freight trains. The answer denies the negligence complained of, and, for further defense, avers that the- death of appellant’s decedent was caused by his own negligence, which is denied by the reply. The trial resulted in a verdict for appellee by reason of a peremptory instruction given by the lower court at the conclusion of appellant’s evidence, and, a new trial having been refused the appellant, it asks this court to •declare that the giving of the peremptory instruction by the lower court was improper, and also that that court erred in overruling the motion for a new trial.
*18The record shows that the only ground relied on for a new trial is the alleged error of the lower court in giving the jury the peremptory instruction to find for appellee. It is patent, therefore, that the question of whether the peremptory instruction was or not proper must be determined from the evidence introduced by appellant on the trial. Our examination of the record leads us to the conclusion that the following facts are to be regarded as satisfactorily established by the evidence, viz.: First. That appellant’s decedent was killed on the afternoon of May 9, 1901, by appellee’s west-bound freight train, at or near' a private crossing one mile from Reed’s station, and at a point about 330 yards' south of a public crossing. Second. That at the point where he was struck, he could, if on the track, or within 40 or 50 /feet of it, see up the track towards Reed’s station, whence the train was coming, a distance of at least a mile. Some of the witnesses not in view of the train itself say they saw the smoke from it, heard distinctly the noise it was making in running, and heard it whistle for, or before reaching, the public crossing, which was 330 yards from the point where the deceased was killed. Third. That the crossing at or near which he was killed was a private crossing; that is, one made where a road from the adjoining field crossed the railroad track. The evidence does not disclose whether the deceased, at the time he was killed,, was walking on the track, or attempting to cross it in front of the train, or lying with his body on the track. No eyewitness' was introduced to testify as to the manner of his 'death, unless the statements of one or more of the trainmen, made to the witness Patry, and detailed by him on the trial, are to be considered as competent evidence. Patry testified that when the train stopped, after running over Early, one of the trainmen called him to the place of the accident to see the *19remains of the dead man; and when he got there he was, in substance, told by the conductor in charge -of the train that the man killed was lying on the track about three feet east of the crossing when run over by the train, and that they first saw something white on the track, which looked like a piece of paper, and, when they discovered that it was a man, they were too close with the train to stop it before striking him. We do not think these statements competent, and they should have been excluded by the lower court upon the objection made by counsel for appellee, as they appear to have been made too long -after the accident to be considered a part of the res gestae; but they were admitted by that court, and were probably considered as evidence on the motion for a peremptory instruction, of which appellant can not complain, as the statements-were brought out by its counsel on the examination in chief, and thereby became part of its evidence. So, if the statements of the conductor are to be relied on, they not -only- exonerate appellee from the charge of negligence, but show that the deceased was guilty of contributory negligence. If this view of the case is not to be accepted, the manner in which the deceased met his -death is wholly .a matter of conjecture. But whether he was walking bn the track, lying thereon, or attempting to cross it in front of the train,- as there was nothing to -obstruct the v-iew from where he was for the -distance of a mile in the direction of the approaching train, it is as reasonable to suppose that he saw it, heard the noise of its running, -and heard it whistle for the' public crossing (which was 330 yards away), all in time to have enabled him to get out of its way, as it would be t-o suppose that those in charge of the train saw him and realized his peril in time to have avoided killing him by stopping the train before it struck Mm.
*20As already stated, the crossing at or near which the deceased was killed was a private or farm crossing, and this court has held that the usual signals are not required of a train in approaching such a crossing. But where a private crossing ' is maintained by the railroad company, for the benefit of a landowner, in consideration of the grant of a right of way through his lands, and it is at a point where the view of the track is obstructed — it being a custom of the trains to give warning of their approach to the crossing — it has been held by this court that one injured by a train at such a crossing may recover therefor, when no signal was given of its approach, upon the ground that the failure to give such signal constitutes negligence. L. &. N. R. R. Co. v. Bodine (23 R., 147), 5p S. W., 740; Johnson's Adm’r v. L. &. N. R. R. Co., 91 Ky., 651" court="Ky. Ct. App." date_filed="1883-05-17" href="https://app.midpage.ai/document/johnsons-administrator-v-louisville--nashville-railroad-7132529?utm_source=webapp" opinion_id="7132529">91 Ky., 651, 25 S. W., 754. In Cahill v. Cincinnati, etc., Railroad Co., 92 Ky., 345" court="Ky. Ct. App." date_filed="1891-12-10" href="https://app.midpage.ai/document/cahill-v-cincinnati-7132599?utm_source=webapp" opinion_id="7132599">92 Ky., 345 (13 R., 714), 18 S.W., 2" court="Ky. Ct. App." date_filed="1891-12-10" href="https://app.midpage.ai/document/cahill-v-cincinnati-7132599?utm_source=webapp" opinion_id="7132599">18 S. W., 2. the company was held liable for injury inflicted by one of its trains at a private crossing, but it was because of failure of those in charge of the train to signal its approach to a public crossing a short distance from the private crossing; it appearing that it was customary for these signals to be given for the public crossing, and that they were relied upon by persons using the private crossing. The doctrine here announced was reaffirmed in L. & N. R. R. Co. v. Survant (19 R., 1576), 44 S. W., 88. The, facts of the case at bar do not authorize a recovery as in the cases suipra. Here the crossing is in a field, and from it a clear and unobstructed view is to be had of the railroad track for at least a mile in the direction of Reed’s station; and, though one or two witnesses testified that they had known trains to sound the whistle in approaching the crossing, it does not appear that such signals were customary. *21or that they were not given at the time of Early’s death for the public crossing, instead of the private one.
There is no presumption of negligence against the appellee, any more than there is a presumption of contributory negligence on the part of the deceased. It was incumbent on the appellant to prove negligence on the part of appellee’s servants in charge of the train, or facts from which such negligence could properly be inferred. Hughes v. Cincinnati, etc., Railroad Co., 91 Ky., 526" court="Ky. Ct. App." date_filed="1891-05-09" href="https://app.midpage.ai/document/hughes-v-cincinnati-c-railroad-7132508?utm_source=webapp" opinion_id="7132508">91 Ky., 526 (13 R., 72), 16 S.W., 275" court="Ky. Ct. App." date_filed="1891-05-09" href="https://app.midpage.ai/document/hughes-v-cincinnati-c-railroad-7132508?utm_source=webapp" opinion_id="7132508">16 S. W., 275; Wintuska’s Adm’r v. L. & N. R. R. Co. (14 R., 579) 20 S. W., 819; L. & N. R. R. Co. v. Vittitoe’s Adm’r (19 R., 612) 41 S. W., 269; Morris’ Adm’r v. L. & N. R. R. Co. (22 R., 1593) 61 S. W., 41. The only duty appellee’s servants in charge of the train owed the deceased was to use reasonable care to prevent injuring him after discovering his presence on the track, and a careful examination of the record convinces us that there was no evidence adduced on the trial that tended to prove the want or absence of such care.
We do not attribute to the tests made by some of the witnesses, as to the distances from which certain objects placed by them on the railroad track at the point of the accident could be seen, die importance attached to them by counsel for appellant, for we know that objects to which the attention is called in advance can more readily be seen and identified by a person stationed on the ground at a given distance than by one on a rapidly moving train, however keen his vision, or constant his outlook on the track ahead of the train. But these tests do not of themselves, or in connection with the remainder of the evidence, supply the facts1 from which negligence on the part of appellee may be inferred; and being of the opinion that the lower court did not err in giving the peremptory instruction, nor in refusing the appellant a new trial, the judgment is affirmed.