ON REHEARING.
Opinion delivered November 16, 1908.
■Hart, J.Counsel for appellant urges that the case of the St. Louis, I. M. & S. Ry. Co. v. Allen, 86 Ark. 465, is conclusive of the proposition under consideration in this case. We do not think so. In that case the plaintiff alleged as his cause of action the negligence of the railroad company in failing to provide her intestate promptly with surgical attention, which resulted in his death. The court held that under the undisputed evidence he would not have recovered had he received medical attention sooner, and hence that the delay in procuring it was not the proximate cause of his death. This was tantamount to saying that the proximate cause of his death was the fact that he was struck by the train of the railway company. So in the present case Evans was run over by appellant’s railway train, and that was the proximate cause of his death. He was' a trespasser, and, as was stated in the case of St. Louis, I. M. & S. Ry. Co. v. Raines, 86 Ark. 306, the servants of the railway companj'- owed him no duty except to exercise ordinary care not to injure him after discovering his dangerous position. The court said: “The question is not whether defendant’s servants could have discovered the perilous position of the man, but whether they did discover it in time to have avoided the injury by the exercise of care. And the burden is on the party alleging negligence in this respect to prove it.”
In that case, as in this, after the man was discovered on the track, the train was so close to him that the engineer could not avoid striking him .by stopping the train. There was nothing else he could do except to sound the whistle, which was immediately done. These facts were established by the undisputed evidence. Hénce the court held that reasonable minds could come to but one conclusion, and that was that there was no negligence on the part of the servants of the railway compan)*-.
In the present case the engineer, after he discovered deceased’s dangerous position, did not ring the bell or sound the whistle. . The failure of the engineer to use the instrumentalities placed at his hands for the purpose of warning persons on the railroad "track of the near approach of a train created a condition from which reasonable minds might draw different conclusions. In other words, the jury might have found negligence from his failure to give the usual danger signals.
We are of the opinion that the testimony was sufficient to submit the .question of negligence in this respect to the jury.
The rrfotion for a rehearing is therefore denied.