Plaintiff and his wife were standing on the sidewalk a few feet from the track while the freight train was going east. *197He was familiar with the locality; knew it was a double-track road, and that beyond the track upon which the freight train was passing was the west-bound track. When the freight train had passed about thirty feet he started to cross the track and was hit by the west-bound train upon the other track. Directly in front of him, and a few feet from the crossing, was.an electric light. A headlight was upon the locomotive that hit him. He says before he stepped upon the track he looked in both directions. He also says that the flagman at the crossing stood near him while the freight train was passing, but a few feet off the walk towards the flagman’s shanty, and that the flagman told him to go ahead, and was swinging his lantern. He does not make it clear how the flagman was swinging the lantern, but says at several places that he was swinging it in the same direction the railroad ran. That would be across the street. His wife corroborates him.
The evidence of the flagman shows that he was standing in the street, a few feet from the plaintiff, while the freight was passing, with his lantern in his hand; that he told the plaintiff not to go, and as he went grabbed-the wife and prevented her from going. Other witnesses corroborate the flagman. The plaintiff made a statement at the hospital in which the other facts are accurately stated, and in which he said that the flagman said nothing to him, and he was not sure whether he had a lantern or not. Several persons present when the statement was made show that he understood its contents.
It is improbable that the flagman told him to go ahead. The plaintiff’s entire case stands upon that allegation. In the absence of it he clearly would be guilty of contributory negligence. He has evidently put that statement into the flagman’s mouth in order to get to the jury. It is opposed to the facts of the case and the evidence. It is not the duty of the court to affirm a judgment when it is clear that it rests upon a known false statement as to a fact.
The defendant asked the court to charge that if the flagman had shouted to Mr. Kratka when he started to cross, and warned him not to cross, the flagman did his whole duty. The evidence of the flagman and other witnesses show that when he was standing in the street at the crossing with his *198lantern in his hand he hallooed to the plaintiff to stop. This request was made with reference to that evidence, and meant, if it means anything, that if- the flagman stood in the street with his lantern and shouted to the plaintiff and told him not to cross, he did his duty. It is difficult to see what more was required of him. The court declined the request, stating that it would leave it to the jury to determine whether he did or not. If the flagman was at the crossing, in his proper place, with his lantern, and told the plaintiff not to cross, then there could be no recovery. The request so deafly means that that I think it was the duty of the court to make the charge, or otherwise, explain what other acts might be considered with reference to the flagman’s duty. For this error in ruling I favor a reversal, and also upon the ground that the verdict is against the evidence.
All concurred, except Woodward, J., dissenting in opinion.