(after stating the facts.) The court’s fourth instruction was as follows:
“If therefore you believe from the evidence that the assured was killed by falling from the top of a moving freight train upon which he had been riding in a standing position, without light or lantern on a dark and rainy night, and that he was not there as an employee of the railroad company in the discharge of his duty, you are instructed as a matter of law that assured was guilty of negligence and of unnecessarily exposing himself to danger, and that plaintiff can recover only the sum of $129.70.”
Under this instruction the verdict should have been for $129.70. The court erred in not declaring as matter of law that appellee upon the undisputed facts could not recover in excess of $129.70, as requested in appellant’s first prayer for instruction. The facts, as established by the uncontroverted evidence, show -that Herman E. Brittner was killed by the freight train which left Et. Smith crossing bound west at about 9:3o o’clock March 5, 1904. Brittner was on the ground about the time for the departure of that train, asking its engineer and fireman for permission to go on that train by exhibiting his brotherhood pass. He was referred by the fireman, who positively identified him, to the conductor of the train, who was supposed to be at the depot. Brittner was last seen alive by the fireman going towards the depot. This was a few minutes before the train pulled out. The direction Brittner took after leaving the fireman was in the course the train would take as it moved out for Et. Smith. A man was seen by the brakeman, after the train started, on top of the cars, and was seen to disappear therefrom at about the place where Brittner’s dead body was found that night. When the train reached Conway, the first stop, the train crew received information which led them to examine the train to see if they had run over some one. Blood and brains were discovered on the brake shoes) brake beams and on the wheels of the twelfth car from the caboose, but nowhere else on the train. There was no blood on the wheels of the engine or any other car of the train. It would have been impossible for Brittner to have reached the place where his body was found, during the interval between the time when he was last seen by the fireman and the time his train reached the place where his body was found, except by going upon the train. He could not therefore have been in front of the engine upon the tracks, or walking beside it, and have been killed and found lying between the tracks as he was. The train was moving slowly enough for Brittner to have climbed upon the top of it as it passed out of the “Y” or left the switch. The twelfth car on which the blood and brains were found occupied the position in the train about where the brakeman said he saw the man when he disappeared from the top, and -this car was about at the place where Brittner’s dead body was afterwards found. Brittner could not have been in front of this train. The time was too short for him to have reached there walking. The engine could not have knocked him down and it and seventeen cars have passed over him without mangling him. That “would have been a miracle,” as one of the witnesses expressed it, and the days of miracles have passed. Yet it is reasonably certain that Brittner was killed by this train. Then 'how was it done? The only explanation compatible with the physical and other facts is that it was done by Brittner’s climbing upon the train as it started out. from the yards, and by falling from the twelfth car, as indicated by the brakeman, between the cars, and by having his head severed by the wheels of that car. Appellant thus sustained the burden of proving that Brittner was killed in the manner set up in its answer. There was no rebuttal of this. It was not shown that any other train killed him, or could have done so. The place where Brittner’s body was found, the manner in which he was killed, the blood and brains on the wheels of the twelfth car, and not on the wheels of the engine and others cars, the fact that he wanted to go on this train, and that a man was seen to disappear from the top of a car about where the twelfth car would have been in the train and about where Brittner’s dead body was found as shown by actual measurements- — these facts should cause unbiased minds -to come to the conclusion that Brittner was killed in the manner indicated, and no other conclusion can reasonably be reached. It is not a question of disputed evidence, the weight of evidence, or the credibility of witnesses. But the question is, the facts being undisputed, what should be the conclusion? There is no room for a difference of opinion, and the court should have declared it as asked in appellant’s first prayer, and the jury should have found it under the court’s fourth declaration. The judgment is reversed, and the cause is remanded for new trial.