The appellants have filed 10 specifications of error, but the agreement entered into between the parries at the trial in the court below reduced the question at issue as to defendant’s negligence to very narrow limits. Said issue is as follows: “It was agreed by the parties in open court that the court should submit to the jury, if he did submit the case, the sole question as to whether or not the failure to block its frogs was an act of negligence on the part of the defendant.” This was the only question, undoubtedly, that the court below considered in arriving at the conclusion from the evidence not to submit the case to the jury. It is a well settled rule that when, in the opinion of the trial judge, the evidence is not sufficient to sustain a verdict, and the court would be compelled to set the verdict aside, should one be returned by the jury, it is the duty of the court to take the case from the jury or direct a verdict. We have examined the evidence with same care, as set out in the bill of exceptions, to ascertain if the court below in directing a verdict acted in accordance with the foregoing rule; and we are satisfied, beyond question, that the evidence, taken as a whole, does not establish that the appellee was negligent in not blocking its frogs. Not only wras the preponderance of the evidence opposed to that view, but the great weight of the testimony was in opposition to that view. We deem it unnecessary to enter into the discussion, so much insisted upon by appellants, that a brakeman on a railroad train is more likely to tell the truth than a chief engineer, superintendent or vice president of a railroad. Suffice it to say that none of the witnesses are impeached in this case. The evidence clearly shows that a large majority of the railroads in the United States use the unblocked frog, and, while two or *640three witnesses in this case testify that to use an unblocked frog is dangerous, the larger number testify that the unblocked frog is not more dangerous than i the blocked frog, and some of them testify that the blocked frog is the more dangerous. Besides, it appears from the testimony that some railroads that did use the blocked frog have abandoned it for the unblocked, notably the Texas Pacific and the Gulf, Colorado & Santa Pe railways, for the reason that the former was the more dangerous of the two. This is substantially the disputed state of facts, as appears from the evidence in this case. In Southern Pac. Co. vs Seeley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391, where the identical question was developed in the evidence, and the defendant had requested the court to give the following instruction to the jury: “The jury are instructed that if they find from the evidence that the railroad companies used both the blocked and the unblocked frog, and that it is questionable which is the safest or most suitable for the business of the roads, then the use of the unblocked frog is not negligence, and the jury are instructed not to impute the same as negligence to the defendant, and they should find for the defendant, ” — Judge Shiras, of the United States supreme court, says this instruction should have been given; and the judge cites a number of cases holding the same views, and quotes Judge Bradley, in Tuttle vs Railway Co., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114, as sustaining the same view, as follows: “Although it appears that the curve was a very sharp one at the place where the accident happened yet we do not think that public policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it should use in its freight depots and yards where the safety of passengers and the public is not involved, — much less, that it should be left to the varying and uncertain opinion of jurors to determine such an engineering question.” Id., 122 U. S. 189, 194, 7 Sup. Ct. 1168, 30 L. Ed. 1116. And, after discussing the question at length *641as to whether the use of an unblocked frog made the defendant liable for negligence, Judge Shiras says: “In view of this case and many others of similar import, which it is unnecessary to cite, we think it plain that the defendant was entitled not merely to the instruction prayed for, if the case went to the jury, but that upon the whole evidence the prayer for a peremptory instruction in the defendant’s favor ought to have been granted. ” This practically settles the question in this case in favor of the action of the court below, and, while many cases are cited by appellant, we cannot concur in the following view of the appellants: That ‘ ‘the court before whom the case at bar was tried committed a judicial wrong, abused his judicial discretion, in taking the case from the jury upon the appellee’s motion, and thereby committed such error of law as renders it the duty of this court to reverse and remand this cause. ’ ’ But we think that ‘ ‘the conclusion follows, as a matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Dunlap vs Railroad Co., 130 U. S. 649, 9 Sup. Ct. 648, 32 L. Ed. 1059. The appellee has also cited authorities taking the same view of the question as the Seeley Case, but, as heretofore stated, the Seeley Case is in our opinion, conclusive of the question and therefore the judgment of the court below is affirmed.
Gill and Raymond, JJ., concur.