ON REHEARING.
HarT, J.In their motion for a rehearing counsel for appellant complain that we did not discuss two of their assignments of errors, one in regard to the court giving over their objection instruction No. 2, and the other in refusing instruction No. 5 asked by them.
The one given is as follows:
“2. If you find from a preponderance of the testimony that the defendant company, through any of its servants or employees, ran an engine along said track in the night time without keeping a lookout for persons and property on the track, or without ringing a bell or sounding a whistle, or without a headlight on the engine, at the time and place when and where plaintiffs were about to cross said track, this would be negligence, and you will so find.”
The one refused is as follows:
“5. You are instructed that if you find from the evidence that the engine which collided with the plaintiff herein was being brought from the cinder pit for the purpose Of placing same upon a side track, and was not in regular use by defendant, but was being prepared for use, then it is immaterial whether or not the engine was equipped with a headlight. And you are further instructed that if the plaintiff saw the engine before the accident occurred, then it is immaterial whether or not the engine was equipped with a headlight.” -
It is true, we did not specifically discuss the action of the court in giving or refusing the instructions in question; but we duly considered them, and thought the principles decided in the -case of St. Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372, -cited in our original opinion, would indicate that we had •considered them. To be more specific, it was -decided in the case of Little Rock & Fort Smith Ry. Co. v. Blewitt, 65 Ark. 235, that “an engine and tender are a train, within the meaning of the statute making railroads responsible for all damages to persons and property done or caused by the running of trains in this State.”
“Kirby’s Digest, sec. 6607, providing that it is the duty of all persons running trains upon any railroad to keep a -constant lookout for persons and property upon the tracks, etc., requires a lookout to be kept by persons running cars and engines in a railroad yard.” Little Rock & Hot Springs Western Railroad Company v. McQueeney, 78 Ark. 22.
In the Johnson ■ case the evidence for the plaintiff tended to show that the train which injured him was a work train, consisting of an engine, tender and two w-ater cars, which was being slowly backed over the crossing at night without lights or signals. The court said: “There was abundant -evidence of the negligent operation of the train to submit that question to the jury; and, as it was done under proper instructions, it must be taken here that the company negligently failed to keep a lookout and give warning of its movements.” In such cases the question is whether the-train is being negligently operated, and in determining that question the purpose for which the train is being operated does not enter.
Again, it is contended by counsel for appellant that the evidence of apellee tending to show that the train approached the crossing (without giving warning by ringing the bell or sounding the whistle was negative. We do not agree with their contention. All the facts and circumstances attending the occurrence as testified to by appellee tend to show that he was using his senses continually while on the crossing. He knew that it was the duty of the servants operating the train to give notice of its approach to a public crossing by ringing the bell or sounding the whistle. During the whole time he was on the crossing he was noticing for these signals. The conditions and circumstances surrounding him were such that he could have heard the signals, had they been given. Everything around there was quiet. His mental condition was such that he could have heard the bell, had it been rung. In such case he must be said to have such knowledge as enabled him to speak affirmatively of the existence of the fact in regard to which he testified. See Wigmore on Evidence, § 664. As stated by Prof. Wigmore, “the only requirement is that the witness should have been so situated that, in the ordinary course of events, he would have heard or seen the fact had it occurred ;” and under such a condition the testimony is not “based on what may be called negative knowledge.”
As stated in our former opinion, while the evidence on the part of appellee was weak, we think it was sufficient to warrant the verdict of the jury. The motion for rehearing will be denied.