(after stating the facts). The judgment was correct. Conceding that it was a question for the jury as to whether appellant was negligent in making the flying switch under the facts in evidence, appellee was nevertheless negligent in walking where she did under the circumstances, and this negligence contributed proximately to the injury of which she here complains.
Giving the evidence its strongest probative force in favor of appellant, it still shows beyond controversy contributory negligence on her part. The uncontradicted evidence shows that appellant knew, when she reached the main line at the crossing on her way home, that “the train was standing about the alley north of Main street.” Appellant herself testified that she looked “back and saw the engine and cars all coming down the main line.” \A(hen she “looked bade the last time,, the engine and cars were on the crossing, and the engine was about at the switch.” This testimony by appellant shows that she knew the train was moving in the direction she was going. Appellant knowing that the engine and cars were following her, it was negligence of the reckless kind for her to walk either down the main line or the siding without definitely ascertaining, before she did so, on which track the engine and cars would go, or whether the engine would go -on one track and the cars on the other, as they often did in making the flying switch. Appellant’s testimony shows that -she knew that the local, which she supposed this train to be, often did switching at this point. She expected it to do switching that day as usual, she heard the engine “start up quick, like it was about to switch cars,” yet she did not take the pains to ascertain whether any -cars were switched on to the side track where she was walking -or not, but carelessly walked on, as appellant’s counsel says, “oblivious to her danger.” It is undoubtedly true that she was -oblivious of her danger, but why was she oblivious? She had no right to be oblivious. It was her duty, with the train following in her footsteps, to be alert and thoughtful. She had no right to suppose that the train would go on the main line, and not on the siding. She could not speculate about which track the train would take, and escape the disastrous consequences of such speculation. It was her duty to know under the circumstances which track the train had -taken before she put her foot in the dangerous way, when the way of perfect safety was •open to her.
In Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10, the facts were stated as follows. “Burns had just left the depot, and saw a train standing just northeast of the depot at the tank, and knew that it could not get on the ‘passing’ track until it -came thirty steps south of the depot; and about time said freight train reached said ‘passing’ track he turned round and looked at it, and saw it turn, as he thought, on the ‘passing’ track, which he was then on, as it was the custom of trains of that kind to do. He was familiar with the different trains on the Cotton Belt Railroad. Some are local freight trains, and some are through freight trains, and there are fifteen or twenty passing during the day. Now, he walked down the ‘passing’ track for some distance, which was the common walk way, and, hearing the train move rapidly, thought it would be safer to step over on the main track, and be further away, so it could pass. He used his eyes, and he thought he saw it go on the ‘passing’ track, as it was the custom of that class of trains to do so.”
Of these facts the court said: “This leaves, nothing for the jury. According to familiar rules often announced by this court, appellant did not make that use of his senses for his own protection which the law exacts before he can recover for the negligence of the company that concurred in his injury.
“Appellant’s great familiarity with the tracks and trains where he was injured, and the ever imminence of peril, where, there was so much passing and switching, should have kept his senses alert, and have caused him to walk between the railroad tracks where, according to the witnesses, it was ‘nice and smooth’ and free from all danger. The law wisely and justly holds the company liable for its own acts of negligence which result in injury to another. But there would be no reason or justice in holding it responsible for the mistakes of another which it did not cause, and could not prevent, and but for which there would have been no injury, notwithstanding its own negligence.”
The facts in the case at bar showing conclusively the contributory negligence of appellant are even stronger than they were in the above case. See other cases there cited and also the case of St. Louis & S. F. Rd. Co. v. Perrell, 84 Ark. 270.
The complaint does not allege that appellee was liable be-' cause of the discovered peril of appellant in time to have avoided injuring her. But, treating that as an issue upon the testimony that was offered without objection from appellee, still there is no evidence to warrant a finding against appellee on that issue. While there is some evidence tending to show, and that would justify a finding, that appellee’s servant discovered appellant, there is no evidence whatever that he knew that she was oblivious to her danger. On the contrary, the undisputed evidence is that she had loooked back, and, while she says she “didn’t see anybody” when “she looked back,” yet other witnesses in her behalf and witnesses for appellee testify that the switchman was at the switch. Then, if the switchman was there and saw appellant, when he discovered her he had the right to rest upon the assurance that she was'cognizant of the fact that the train was following her, for she had looked and had seen it. He was not culpable for not giving her further warning or for not making a more strenuous endeavor to rescue her. For, from his viewpoint, as appellant’s witnesses place him, he could see that appellant was not unconscious of the movements of the train, and therefore he had the right to assume that she would exercise the ordinary prudence of an intelligent person, conscious of danger, and step aside, out of harm’s reach, as the cars passed by.
The proof did not make appellee liable. There was no issue of fact for the jury. Affirmed.