After reargument we still adhere to the former conclusion in this case. As the motion for non-suit was not granted, the court will now examine the testimony in the whole case in reviewing the ruling of the court. It does not become important now, therefore, to inquire whether the case was one which ought to have been taken from the jury on the proposition that when the evidence is not conflicting, the question as to contributory negligence is a question of law for the court.
There was a motion for a new trial and a statement of the case, and the point was there made that the evidence was insufficient, because it failed to show negligence on the part of the defendant, and did show that the injury was caused by the negligence of the plaintiff. On the whole case, can the judgment be sustained? This really depends upon the inquiry as to whether there was a real conflict in the evidence on the point of negligence.
It is admitted that the plaintiff was grossly negligent, and that such negligence contributed to the accident, but it is claimed that notwithstanding such gross negligence on the part of plaintiff,—in fact, in consequence of the danger to plaintiff occasioned solely by his own gross negligence,—the defendant owed him a certain duty which it failed to perform, and that the injury would not have been received if such duty had been performed.
Counsel concedes that the defendant did not owe plaintiff, who was a trespasser upon its roadway, the duty of looking out for him. It had a right to assume that no trespasser would be on its track. If, for instance, the engineer had been reading instead of being on the lookout, and therefore had not seen the plaintiff, and in consequence had run over and crippled him, the defendant would not have been liable, although it were admitted that had the usual lookout been kept up, the engineer would have seen plaintiff, and would easily have prevented the accident.
Taking the admitted negligence of the plaintiff as a *122premise,—i. e., as a circumstance,—in view of which the defendant is to be judged, did the defendant even then fail in some duty which it owed the plaintiff? This will depend upon two propositions: Did the engineer, as a matter of fact, see the plaintiff, helpless or unjudging, in a dangerous position in time to have stopped the train ? and having so seen him, did he use ordinary diligence to stop the train?
The plaintiff was lying beside, not on, the track. There were weeds where he was lying, but not sufficient- to prevent his being seen. The plaintiff proved that such an object might have been seen in that position at a distance of four hundred or five hundred yards by the engineer, if he had been looking for it. After the accident the plaintiff was picked up about fifteen feet from the crossing, and there was a clot of blood on the rail at the crossing. The whistle was sounded four hundred or five hundred feet from the place of the accident, and the engine was stopped right abreast of where the plaintiff was lying. It appears that the plaintiff, besides having his foot crushed, was injured somewhat on his head and one shoulder. Here the evidence on the part of plaintiff really ended. Plaintiff's own testimony was more favorable to the theory of the defendant. He thought he was sitting on the end of a tie outside the track. There is here no evidence whatever that the engineer saw plaintiff, except the fact that the train was stopped, and no evidence of want of diligence. The engineer, however, testified for defendant that when he approached the place of the accident he first saw the bundle of blankets by the road, and kept his eye on it for about a half-minute before he saw the plaintiff; that as soon as he saw that the plaintiff was in a dangerous position, he used every effort, and as quickly as possibly, to stop the train. There is no conflict as to what the engineer did, unless it consists in the fact that it is shown that he sounded the whistle, by doing which, it is claimed, he *123lost time in stopping the train. But we cannot now say that any time was lost by this, or that it was not proper under the circumstances, both as an alarm to plaintiff, whom the engineer did not know to be absolutely unjudging, and notice to the train hands to assist at the brakes. 'Then the engineer was not called upon for the highest possible diligence, but only for ordinary diligence; and even should it appear in judging after-wards that something different might perhaps have been better, it would not make the ease against the defendant. We do not think there is here a substantial conflict, if it can be said that there is a conflict at all. The rule is not, as counsel seems to suppose, that any degree of conflict in the evidence, however slight, will avail to support a verdict and judgment on appeal. Where we can plainly see that the conflict is not a substantial one, we do not hesitate to interfere.
Indeed, the testimony of the witnesses in the case discloses no conflict at all. The evidence which it is claimed tends to prove negligence on the part of the engineer consists simply of inferences, which are uncertain and remote, and required considerable ingenuity on the part of counsel to make apparent. Admitting the general rule to be that the case will not be taken from the jury where there is any evidence tending to show negligence capable of producing any degree of uncertainty, we think even tested by that rule, a new trial ought to be granted in this case.
Judgment and order reversed, and a new trial ordered.
Paterson, J., McFarland, J., and Morrison, C. J., concurred.
McKinstry, J., concurred in the judgment.
Thornton, J., dissented.