Plaintiff, widow of William Rol-lison, sues in the Macon Circuit Court for statutory damages for her husband’s alleged negligent death at a railroad crossing in the country. When her testimony is in, defendant offers an instruction in the nature of a demurrer to the evidence. The court signifies an intention to give it. Thereat she takes a non-suit “with leave” and, failing to get it set aside on motion, takes an exception and on apt and timely steps comes up.
Assuming conventional allegations, the actionable negligence is alleged to be that the servants of de-
The answer denied defendant’s negligence, and, in turn, charged the contributory negligence of decedent in enumerated specifications.
Separating the facts on which there is accord from those on which there is not, the undisputed ones fol-
So much for facts conceded as standing unim-peached.
We now come to some other testimony of plaintiff, which, it is argued by her learned attorneys, shows there was negligence in giving alarm whistles, or rather from which a legitimate inference springs to that effect. As said, plaintiff put the engineer on the stand and from him and other witnesses established the foregoing facts. The engineer testified that the instant his eye fell on decedent and he grasped the situation, viz., that decedent was bent on crossing, he gave alarm signals by blowing his whistle in three or four sharp, short blasts to no avail. He whistled- as quick as he could. But from three other witnesses, it is claimed, testimony was elicited tending to show negligence in the foregoing particular.
Here it is: Dickerson testified that after leaving decedent at T he drove south on A in his spring wagon on a muddy road in a trot for 900 feet, at which point he heard shrill alarm whistles behind him and then turned his head, looked north and saw decedent’s body in the air. That he turned as quick as he could, “just like any one when he heard a quick sound that way.” Decedent’s body was in the air ahead of the engine on the south side of X. (Note: The mail box was on the north side-of-B which would bring any one traveling east along there close to the wing-fence, as decedent did, on the north side of X.) The alarm whistles causing witness to turn his head and look back were in quick succession.
Another witness-, Lock, was in a barn currying a team of horses. As it was winter, absent testimony on the point (as here) we will assume the doors were shut. This barn was about 300 feet north and 150 feet west of X. He heard, but did not see, the train pass the barn going south. He heard alarm whistles right
Mrs. Rollison, a daughter-in-law of decedent and living with him in his house, situate, as said, east a quarter and south a half-quarter from X, testified with uncommon candor and naivety, to this effect: It being a cool morning the house was shut up. She had been assembling her husband’s shaving material for his use and was looking out of a north window for several minutes (fifteen or twenty) when her eye lit on the train (evidently cross-lots to the northwest). It was then, in her judgment, seventy-five or eighty feet from X. She heard no signals until, she thinks, it got to X "when she heard three or four alarm whistles. There was not any whistle before that. She did not, however, see the train go on the crossing. It may be well to give some of her testimony in chief at this point, as it fell from her lips, thus:
“Q. About what distance did yon see the train cover — about how far from the crossing when you first saw the train? A. Well, I should judge seventy-five or eighty feet from the crossing when I first noticed it.
“Q. And then how far did you see it or was it just a glance ? A. No; I was looking right at the train. I first glanced there, then I could see it until it got almost on the crossing, just approaching the crossing.
*536 “Q. You may tell the jury if at the time you saw it, if any signals were given by the train? A. What do you mean?
“Q. When you saw it? .... . A. No, sir; there was not any whistle; I saw the train. . . .
“Q. How far is the Rollison house at which you were staying from this railroad crossing? A. A quarr ter of a mile east and a half a quarter south, I think.
“Q. You may tell the jury if you had a clear view of the track? A. ■ Yes, sir.
“Q. Tell the jury why you did not see the train go on the crossing? A. Well, I would have had to have turned to have seen the train go on the crossing. I did not turn, I looked straight ahead, did not turn enough to see it.”
There was no obstruction to sight between the house and X. Witness from her north window could have seen the train clear to the whistling post, in fact for a mile, had she been looking for it, but it fell under her eye about seventy-five or eighty feet, she thought, from X. It was, she admits, a mere estimate. She did not see decedent struck.
Such is the case.-
On that record we have no hesitation in holding-that a demurrer-to the evidence laid, hence there was no error in forcing a nonsuit or in refusing to set it aside. This because:
(a) In applying the law of negligence to accidents at public road crossings, it is settled doctrine
(b) Take another phase in the application of the law of negligence to crossing accidents, to-wit, that of the train’s stopping or slacking its speed in order to save an exposed person from death or injury. It is no
(c) But stopping, or rather inability to stop, did not measure the full duty of respondent to decedent. It owed him the duty to warn him, to tell him it proposed instantly to occupy with its ponderous death-
But that rule does not aid appellant an iota. Her case being fatally dogged and handicapped, as it is, by the unmistakable and singular negligence of her unfortunate husband in going upon a live railroad track with a train due and without the slightest precaution against danger, where, being deaf (a thing he knew and which the engineer did not know) he was under the spur of the sharper instinctive duty to uf,<í his
Let us look ti that. It is admitted by appellant that if the engineer’s testimony is to be believed there is no case at all for the jury; for he says he gave the whistle alarm as soon as his eye saw and his mind could conceive the situation and his hand grasp the whistle throttle.
Counsel, in this predicament, invoke the rule, to-wit, that the party who puts a witness on the stand and by that act vouches for his credibility is not so
It would be, I think, to shock the conscience common to all mankind to indulge the hypothesis, absent proof, that the engineer would not give such alarm in the presence of such an imperious call and do it as quickly as he could. He had only two seconds in which to act and we think, on the record brought here and _ confining our ruling to the very case in judgment, that a jury should not be allowed to say he did not act precisely as he said he did. Because:
“He could distinguish and divide A hair ‘twixt south and southwest side.
For he by geometric scale Could take the size of pots of ale.
And wisely tell what hour o ’ the day The clock does strike by algebra.”
What is said of Dickerson’s testimony is true in a greater degree of Lock’s; for he saw nothing at all. He merely heard the noise of a train going by the barn and afterward heard the alarm whistles. He then undertook to calculate and form a concept of where it was when it whistled — this, apparently, by running back in his mind and remembering the time that had elapsed since he heard the train go by. By
The-witness, Mrs. Bollison, thinks she saw the train when it was seventy-five or eighty feet from X. She was looking fixedly through a window in one line and casually saw a train coming into (and then going out of) her line of vision, at an angle towards that line and stiffly over a quarter of a mile away. That she considered the incident listlessly is clear enough; for she did not turn her head far enough to follow the train, or see X at all. True she finally heard the whistles and was permitted to tell, from that sound as a sole factor, -that it was at X instead of 175 feet from X. The value of her estimate depended also on factors unknown to her, viz., the real distance of X from where she casually saw the train, and, next the speed of the train, a thing she knew nothing about. To hazard a guess on how far it went after she saw it until she heard the alarm whistles, without knowing its speed, would he idle. Not to allow for the appreciable time it took for the sound to carry from the engine to her ear, would be unscientific; for, as said, we are dealing with seconds in order to transfer $10,000 from the pocket of A to the pocket of B— a delicate function.
The trial court did not see in all the foregoing such contradiction of . the positive evidence of plaintiff’s witness, the engineer, as called into play the decision of the triers of fact. Neither do we. There was, then, no substantial evidence of respondent’s negligence, and, failing in that, no case.
Furthermore, the case on the facts is also brought within the rule of the law of negligence, to-wit, that
If, as has been wisely said by a great authority on the philosophy of the law, “Law is beneficence acting by rule,” then courts must conform to established rules in order that law be beneficent. We best adhere to established rules in negligence cases in holding as announced.
Look at it as we may, if that sympathy for the widow, which we confess, is not to quite run away with reason, the judgment was right. Let it be affirmed. It is so ordered.