On the night of the 18th of January, 1942, a wagon and team of mules owned by appellee were struck by appellants' passenger train No. 3, traveling from Little Rock to Texarkana, at a crossing in the town of Curtis, Arkansas. The mules were killed and the wagon demolished.
Appellee had traveled in his wagon to church, which was a short distance west of the railroad tracks, and *Page 1053 while he was in church the team of mules became unfastened and proceeded down the road which crosses over the railroad tracks. The railroad tracks run generally north and south through the town of Curtis and are straight as they approach the crossing. The team of mules and wagon approached the crossing from the north.
Three alleged acts of negligence were set out in the complaint as follows: (1) running the train at a high, excessive and dangerous rate of speed; (2) without keeping a lookout for persons or property approaching the crossing, and (3) failing to ring a bell or blow a whistle, or give any warning of the train's approach.
At the close of the testimony, the trial court by proper instruction withdrew from the consideration of the jury allegations of negligence one (1) and two (2) with respect to the speed of the train, and, also, with respect to keeping a lookout, and limited the inquiry of the jury respecting negligence to the allegation pertaining to the failure to ring the bell and blow the whistle.
From a judgment against them appellants prosecute this appeal, urging as the sole ground for reversal the alleged error of the trial court in refusing to give their requested peremptory instruction.
At the trial appellee called as a witness one Hugh Patton, who testified; that he lived in a house which was located about seventy-five yards from the crossing; that at the time of the collision he was looking out of his window; that he could not see the crossing, but could hear the train and see lights from it as it approached the crossing, and immediately after it had passed the crossing the train came into his view. The witness testified the whistle was not blown and that he did not hear a bell ringing. Being further questioned relative to the bell he stated: "I didn't hear it, but there was nothing to keep me from hearing it." Admitting that the windows and doors of his house were closed and that he was inside the house he said: "But there wasn't anything in there to keep me from hearing it." The witness answered *Page 1054 "no, sir" to the following question propounded by counsel for appellants: "But as I understand it, you are not positive, and you do not testify positively that the bell wasn't ringing?"
Appellants concede that the testimony of this witness to the effect that the whistle was not blown amounts to substantial evidence of that fact, but they say "under the circumstances this testimony (which is all that the record discloses tending to show that the bell was not rung) is not substantial evidence that the bell was not being sounded."
Basing their argument upon the premise that under the provisions of 11135 of Pope's Digest, the burden rested upon appellee to show not only that the whistle was not blown, but also that the bell was not rung, appellants contend that the court should have directed a verdict in their favor for want of substantial evidence tending to prove that the bell was not sounded.
This argument rests upon the theory that the testimony relating to the ringing of the bell is negative in its character and, therefore, wholly lacking in evidentiary value. Many decisions of this court may be found declaring the rule to be, that where a witness, in possession of his faculties of hearing, was so situated that he would have heard signals had they been given, testifies that he heard no such signals, such testimony cannot be classed as negative in its character. Such testimony is treated as being affirmative testimony, tending to establish the fact that such signals were in fact not given, and is entitled to such weight as the jury sees fit to give it. Fort Smith Western Ry. Co. v. Messeck, 96 Ark. 243,131 S.W. 686, 966; Chicago, Rock Island Pac. Ry. Co. v. Thomas, 184 Ark. 457, 42 S.W.2d 762, and cases therein cited; Mo. Pac. R. R. Co. v. Rogers, 184 Ark. 725,43 S.W.2d 757, and cases therein cited.
Appellants recognize the rule of these cases, but argue that the rule should not be applied here, because they say: "The physical facts reveal that in all probability be (Patton) could not hear the bell on account of being in his home, 75 yards away from the crossing, in *Page 1055 the opposite direction from which the train was coming, with his windows and doors shut; and (especially so since) there was other positive evidence of an outside witness, not connected with the railroad, that the bell was ringing as the train approached the crossing, which was corroborated by the testimony of the engineer of the locomotive of the train."
These were matters for consideration of the jury in determining the weight which should have been given to the testimony. Sibley v. Ratliffe, 50 Ark. 477,8 S.W. 686. We conclude, therefore, that there was substantial evidence that neither signal was given, i. e., neither the bell was rung nor the whistle blown, as the train approached the crossing.
The facts in the case at bar are quite similar to the facts disclosed in the case of Mo. Pac. R. R. Co. v. Mitchell, 170 Ark. 689, 280 S.W. 627. There, as here, a team had become unfastened from a hitching post, and, drawing a vehicle to which it was hitched, wandered onto the railroad at or near a crossing and was struck and killed by a moving train. There as here the engineer saw the team before striking it. There as here there was testimony to the effect that the engineer did, and, also, that he did not ring the bell; and, also, that he did and did not sound the whistle. The court held that the facts required submission of the issue to the jury. That it was for the jury to determine whether the statutory signals were given, and if not given, then whether the injury was the result of the failure to give such signals. In that case Mr. Justice HART, speaking for the court, said: "The jury might have inferred that, had he (the engineer) given warning by a blast of the whistle, this would have scared the team, and made it get off the track; . . ."
The facts in the case at bar lead to the same conclusion as was reached in the case of Mo. Pac. R. R. Co. v. Mitchell, supra. The judgment is, therefore, affirmed.