Dissenting. — I cannot concur in the conclusion reached by my associates. The facts of this case are substantially as follows:
The appellant operates a railroad, approximately eight miles in length, from the town of Burke to the town of Wallace in the county of Shoshone. It is down a narrow, crooked canyon with a grade of about four per cent. The Northern Pacific Railway Co. also has a track running down said canyon. Along said line are situated several towns, to wit, Blackbear, Gem, Hunter, Mace and Burke. It was the custom or habit of many people in going from town to town up and down said gulch to walk on the railroad track. On the morning of October 9, 1911, about 9 o’clock, the respondent left his boarding-house and started down said track toward the Mace postoffice. At a point where the county road crosses *685appellant’s- track, about 300 feet above the point where the accident occurred, the respondent entered appellant’s right of way and proceeded down the canyon toward the Mace post-office, walking between the rails. About 150 feet below said wagon road crossing, he met a friend and they stopped and talked together for a few minutes, and then respondent proceeded down said track for. about fifty yards when he was struck by the tender of the locomotive which was hauling a train of five loaded ore cars from Burke down the canyon to Wallace, each of which cars contained about fifty tons of ore. This train was a regular train operated by the appellant and passed said place every morning at approximately the hour of nine o’clock, which fact respondent knew. The respondent was in the possession of all of his faculties, his hearing was acute and his eyesight good and he was perfectly sober at the time the accident occurred. It appears from the evidence that after he had the conversation above referred to with his friend, he proceeded down the track about fifty yards, which would be about fifty paces of the ordinary man, and at the ordinary gait would require less than one minute, when he was struck by the train and so badly injured that he had to have his leg amputated about halfway between the foot and the knee.
Under the rules of the company and the law of the state, it was the duty of the appellant on approaching a highway crossing to give proper signals by whistle. The evidence of seven witnesses, five of them in the employ of the railroad company and two who were not, was that the signals were given. The conductor, the engineer, the fireman and two brakemen testified that the signals were given. One of the disinterested witnesses testified that on the morning of the accident he was going down said canyon to Mace to take the Northern Pacific train for Wallace. He heard a train whistle and thinking it was the Northern Pacific train, started to run down the track to catch it, and when he heard it whistle again, recognized the whistle as that of the appellant company’s train. Thereupon he slackened' his speed and glanced over toward the appellant’s track and saw the respondent walk*686ing down the track. As the train that struck respondent came along, it whistled again and then the engineer commenced giving the warning whistles — short blasts — while the respondent continued to walk on the track until the train got pretty close to him, when he turned his head and glanced back at the train and then attempted to step off the track.
Another ’disinterested witness testified that he was standing in the door of the Mace schoolhouse and heard the train whistle before it crossed said country road, and then heard it whistle a number of times thereafter.
Eight witnesses, among whom were three or four school children and one or two women who were in houses along the track, and respondent’s friend Perry, with whom he had the conversation just before the accident, and respondent himself testified that they heard no signals until the train was within a very few feet of the respondent, and then they heard some sharp, short whistles from the engine.
The seven witnesses who testified for the appellant gave positive evidence that they heard the whistles and signals given, while the eight witnesses who testified for the respondent (including the school children) testified that they did not hear any whistles until the train was very close to the respondent. This positive and direct testimony to the effect that the proper signals were given is overwhelmingly against the negative testimony of the witnesses who testified for the respondent to the effect that they did not hear the whistles. The grinding and squeaking of the brakes in holding the loaded train down said four per cent grade made a noise that could have been heard a hundred yards or more, and would have been heard by respondent had he been as vigilant as his dangerous position required him to be.
The engineer testified that he saw the respondent on the track and that he gave the signals; that the respondent apparently paid no attention to them and kept walking on the track; that the train was running at from eight to ten miles an hour with brakes on and making a noise. The record shows that a loaded train of that kind, coming down a four per cent grade, would require the brakes to be on to a certain extent *687io keep the train from running away. The engineer, believing that the respondent would step off the track before the train reached him, proceeded to blow the whistle, and when he got within perhaps a hundred feet of respondent and he did not get off the track, he threw on the emergency brakes and gave in rapid succession the danger signal with a whistle. At that the respondent turned partly around with his face to the train and undertook to jump off the track just as the tender struck him. The evidence further shows that the train was stopped as quickly as possible after the emergency brakes were put on and that on returning to the respondent after the accident, he-said to the engineer that he must have been dreaming. From the evidence in the record he certainly must have been dreaming, or was so absorbed In his own meditations that he was perfectly oblivious to his dangerous position and surroundings. Under the well-established rules of law when applied to that state of facts, the .appellant was not guilty of negligence, and was not liable for the injuries sustained by respondent. In this case there was nothing whatever to place the engineer of said train upon his guard or lead him to conclude that the respondent would not step off the track when the train came near him. The train was running only at from eight to ten miles an hour, with brakes on to steady the train down the grade, and was making considerable noise. Although the engineer observed that the appellant paid no attention to his signals, that was not sufficient to indicate that the respondent was not in his right mind, or not possessed of his faculties or would not step off the track before the train reached him, as he was moving and apparently capable of taking care of himself. Under the facts the engineer had the right to assume that he would do so.
The evidence shows that at times when people were walking on said track they would remain on the track until the .train would come very close to them, without apparently paying any attention to the train, and then would step off, and if the engineer made an attempt to stop the train, they would give bim the laugh as he went by. This they would do with*688out giving the engineer any intimation of any kind as to whether or not they intended to get off the track before the train reached them. We believe that is the general experience of all engineers on roads where people are in the habit of walking on the track.
Under the great weight of authority, even if the engineer had seen respondent up to the time the engine got to within 100 feet of him, he had the right to assume that he would protect himself from injury by stepping off the track, and it was not negligence for the engineer to act upon that presumption. The evidence shows that the respondent was an intelligent man, possessed of good ’hearing and good eyesight, and had been traveling up and down that railroad track at that place for five years. And if a man so possessed of his faculties will place himself in a dangerous position, as the respondent did, and so forget the danger of his position as to go to “dreaming” and “meditating,” the appellant company ought not to be held liable under the facts of this case. If a man wants to dream and meditate, he had better go to some safe place and not upon a railroad track at a time when he knows the train is about due to pass.
Many of the authorities cited in Neil v. Idaho & W. N. Ry. Co., 22 Ida. 74, 125 Pac. 331, are in point on this proposition. Norfolk & Western R. Co. v. Johnson, 103 Va. 787, 50 S. E. 268, is cited in the Neil case, and in that decision the court said:
“In the case at bar there was nothing to put the engineer upon his guard. The preponderance of the evidence shows that the plaintiff’s intestate was doing what was done daily at that point. The engineer was confronted with no unusual situation, and he was not negligent, under such circumstances, in treating the plaintiff’s intestate as free from danger.”
In Campbell v. Kansas City etc. R. Co., 55 Kan. 536, 40 Pac. 997, the court said:
“It is contended that Campbell was seen 500 feet ahead of the engine, and therefore the engineer should have stopped the train before reaching him. An engineer, however, is not bound to stop a train whenever he sees a person ahead upon *689the railroad', but has a right to assume that au adult person, apparently in the possession of his faculties, will exercise his senses, and step out of the way of danger before the engine reaches him.....Campbell was a man of mature years, who had the use of his faculties; and, as he was moving and apparently capable of taking care of himself, the engineer had a right to presume until the last moment that he would leave the track and not be run over. ’ ’
In the majority opinion great reliance seems to be placed upon the decision of this court in Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91. That action was brought for causing the death of a four-year-old child who had wandered upon the railroad track. In that case the court held in effect that the conductor, if he had proper eyesight, would have distinguished that it was a small child and should have used greater care than if it had been a full grown man possessing his ordinary faculties. When an engineer sees a very small child on the track, he certainly should use greater care and caution than-is required when he sees an adult on the track, and it is expressly stated therein that “When an engineer sees an adult on the track ahead of him, he ordinarily has the right to presume that he will get off the track before the train reaches him. ’ ’ The facts in the Anderson case are in no manner like the facts in the case at bar.
If the courts of this state are going to follow the rule that an adult with mature faculties may go upon a railroad track, especially such a road as the one involved in this case, where there are curves every three or four hundred feet, or less, and use such track for the purpose of “dreaming” and “meditation,” and hold the company liable in case injury results, it will be carrying the rule of negligence to the very extreme. When an adult goes upon a railroad track to walk, greater care and vigilance is required of him than if he were walking on a sidewalk. It seems to me that if the rule established by the majority opinion is the rule to be observed in this state, the railroad company would become the insurer for any injuries to a trespasser, and unless such trespasser get off the track when the signals are sounded, before the train gets so *690close to him that it cannot be stopped in time to avoid injury, the engineer must stop his train and send a person forward to remove the trespasser so that the train may proceed on its way.
The only reasonable rule is that when the engineer sees a person walking upon the track, apparently possessed of all his faculties, he has a right to presume that the person will leave the track before the train reaches him. The judgment ought to be reversed.
And again: Even if the appellant were negligent in this matter, the judgment is excessive, and ought to be reduced to $8,000.