The evidence in this case tending to establish negligence on the part of the defendant was directed exclusively to proving that the whistle Was not sounded or the bell rung as the train approached the crossing where the accident occurred, and it was urged that the *479omission to give such warning, in view of the great speed at which the train was running, established negligence on the part of the defendant. The learned trial judge charged that negligence could not be predicated upon the speed at which the train was moving or upon the fact that a flagman was not stationed at the crossing.
Under those circumstances I think that the portion of the charge referred to in the prevailing opinion was erroneous, for the reason that it permitted the jury to speculate as to whether or not the defendant should have done something else, not in any manner pointed out or indicated by the evidence in the case, in order to relieve itself from the charge of .negligence, even if they found that the whistle was sounded at the' whistling post and the bell rung continuously from that point to the crossing. There was no evidence tending to show that if such signals had been given they could not have been readily heard by the plaintiff’s intestate. The sole issue as to defendant’s negligence was whether or not those or any signals were given, but the jury by the charge and by the refusal to charge as requested were given to understand that they had a right to conclude that the defendant should have given some other or different warning, which was in no manner indicated by the evidence, and that for its omission to give such other or different warning they had a right to base a finding of negligence.
We think it is not the rule that a jury in a negligence case may be told, in substance, if you find that the defendant did all the things which the plaintiff by the evidence claims it ought to have done, still it is for you to determine whether or not the defendant should have done other things not pointed out or indicated by the evidence, and if you find that it should you may find it guilty of negligence because of its failure to do such other acts. Under such a ruling a defendant might be charged with negligence by a jury without knowing or having the means of knowing- upon what actor omission such charge was based, and, therefore, would be deprived of any means of reviewing such determination or of determining whether it was properly founded or not. In the case at bar suppose the jury had determined and based its finding of negligence on the part of the defendant upon the fact that it did not continuously blow the whistle and ring the bell from a point several miles distant from the crossing. Clearly such finding would not be permitted to *480stand!; yet, so far as appears, the verdict of the jury in this case may have been based upon that proposition or one equally untenable, for, as we have seen, the jury were told in substance that if they found that the whistle was blown at the whistling post and the bell rung continuously from that point to the crossing, as claimed by the defendant and denied by the plaintiff, and although there was no evidence tending to show that if such' signals had been given they could not readily have been heard at the. crossing, still it was within the province of the jury to determine what other signals, in no manner specified. in the evidence or referred to by the court, should have been given in order to relieve the defendant from the charge of negligence. This, we think, clearly left it to the jury to speculate and dratv upon their respective imaginations for the purpose of determining what else ought to have been done by the defendant in order to make the operation of defendant’s trains at the place in question reasonably safe.
Our conclusion, is that the charge and refusal to charge as requested, which ¡are set forth at length in the prevailing opinion, present reversible error, and that the judgment and order appealed from should be reversed and a new trial granted.
Williams, J., concurred.
Judgment and order affirmed, with costs.