On Rehearing.
I have always regarded this case as one which lawyers call “a close case.” We therefore granted a rehearing. An able reargument has not changed the result expressed in the above opinion. I repeat what is said in that opinion, that imperious necessity demands that railroad com-*687pañíes, through their employes, keep careful lookout for people and obstruction, on the track. Eailroads must be accorded a place on the face of the earth to answer the needs of society, but all the people must also use the face of the earth, and we must adopt rules preservative of the rights of all, so far as is practicable. It is a high necessity, looking to the safety of passengers and other people, that those in charge of trains, flying with lightning speed through great stretches of country, shall keep such lookout to discover obstructions and persons disabled from infancy or other cause, found on the track. Judge Holt emphasized this in Dicken v. Coal Co. 41 W. Va. 511 (23 S. E. 582) in saying that railroads of all kinds have found by experience that unrelenting watchfulness is requisite to keep tracks safe and clear and they must act on the assumption that they may be brought in contact with children and adults. Can we find that such watchfulness was exercised in this ease? That is the crucial question. It is fairly plain that, under the evidence, we must find that the children were sitting on the trestle long enough before the engine struck them to have been seen and saved, had a due lookout been kept; but, having so found, the next question is, was there a proper lookout? This is the more difficult question. The children were killed, but that alone is not enough to charge the company, unless it was negligent, and, to show that, it must appear that they could have been seen by the trainmen a sufficient distance from the place of disaster so that the train could have been stopped. Wood, Ry. Law, 1475. And just here counsel tell us that, by the uncontradicted evidence of the engineer and fireman, a watch was kept, without discovery of the children until within fifty feet of them, and that we can not say, therefore, that such watch was not kept.
This brings up the question whether a court, upon a demurrer to evideuce, is bound infallibly to take for true a statement of a witness upon a given fact, only because no witness contradicts him in that statement. The rule is that, upon demurrer to evidence, the court rejects only the oral evidence of the demurrant that is contradicted or impeached. But what do you mean by contradicted or *688impeached.? Do you limit tbe contradiction to contradiction by witnesses? Suppose facts and surrounding circumstances contradict him as to the particular fact, though no witness in words does. If a man who is required to watch in order to see an object says be did watch, but did not see it, when we know the object was there to be seen, and visible and there was no obstruction to sight, and plenty of light, are we bound to say that he did watch, and failed to see? When two children are on a railroad track in broad day light, and an engine is approaching them, with nearly a half mile of unobstructed level track in which to discover them, and a trainman says he looked out that distance without seeing them, is a court bound to say that he did keep such lookout, and did not discover them, merely because it is upon a demurrer to evidence, when a jury need not have so found? We can not here reject the witness, nature, telling us that the sharp eye of an engineer, more surely than an unpracticed eye, will almost certainly see, in bright daylight, a rock, log, or person ahead on a level, unobstructed track. These considerations answer the question of counsel as to what facts justify the conclusion that the children could have beeu seen when the train was three or four times as far away as when the engineer and fireman first saw them. Counsel rely with confidence on the statement of the engineer that he watched carefully, and that no evidence contradicts him. No witness does; but how as to other settled facts and circumstances? Shall we forget them? When it is said that, on demurrer to evidence the party demurring waives his evidence that is contradicted by that of his adversary, we do not mean that if the demurrant has a witness deposing to a given fact, and the demurree has no witness contradicting that particular fact, the court must take that fact as proven by an uncou-tradicted witness, ignoring other facts and circumstances going to disprove that fact. A jury could find against that fact on the strength of other facts and circumstances by saying that such' facts and circumstances contradicted the witness; and must a court be denied the power which a jury could exercise? Surely not, because it has often been held that, if the evidence be such as, if the *689jury had found against that fact, the court should not set the verdict aside, then a ' court, upon a demurrer to evidence, ought to find against that fact. In such case the evidence of the witness is not regarded as uncontradicted. So that the contrary of the particular fact stated by him is fairly inferable from all the facts and circumstances proven by the demurree, this evidence is deemed contradicted, under the rule of demurrer to evidence that demurrant waives “all his evidence that at all .conflicts with that of the other party, admits the truth of his adversary’s evidence, admits all inferences of fact that may fairly be deduced from that evidence, and submits it to the court to deduce such fair inferences.” Clopton v. Morris, 6 Leigh, 278. It is only that evidence of demurrant that does not conflict with the evidence of his adversary, nor with the fair and reasonable inferences from it, that is regarded.
In Green v. Judith, 5 Rand. 1, 19, 20, Judge Carr laid down principles solving more nearly the exact point, we have than any easel see, saying: “What part is he to be considered as waiving? First. All that contradicts that which is offered by the other party; that is, for instance, where a fact is proved circumstantially on one side to be so, and on the other side to be otherwise, this latter, being the demur-rant’s evidence, must be waived. * * * The demurrant can not say: ‘It is true, according to the evidence against me, I ought to admit so and so, as you demand, but my evidence shows I ought not; for, according to it, the fact is otherwise, and my witness is not impeached.’ He must waive his evidence, or the court must do it for him, as to this matter.” Apply these principles in this case. The nature of the case, its circumstances, show that the children could have been seen by a careful lookout in time to save them, and a jury could say, and we can say, there was no lookout; but because a witness says there was, and he is not specifically contradicted by another witness saying the former did not look ahead; but was talking or looking in another direction, wc must say he did look ahead, though the natural facts tell us he could have seen the children had he been looking. The rule of demurrer, to evidence says the demurrant waives that evidence; that *690is, the court disregards it. The plaintiff’s showing, standing alone, denies that there was such lookout, and a jury could on it have so found, and, if it had, we could not set the finding aside; and shall we deny the plaintiff the benefit of a finding which he might have lawfully secured by a jury when the defendant has withdrawn the case from a jury? That is the test, and the cases say not. Fowler v. Railroad Co. 18 W. Va. 579.
And here, upon cases cited in the above opinion, I repeat that upon a demurrer to evidence, in determining facts from evidence, where there is grave doubt, those inferences and conclusions most favorable to the demurree will be adopted; and, unless there is decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor; and if the evidence is such that, if there were a verdict in his favor, the court ought not to set it aside, then, oh such demurrer, the court ought to give judgment in his favor. Speaking for myself, I do not think that Acts 1891, c. 100 (Code 1891, c. 131, s. 9) relates to demurrer to evidence. It was not designed to revolutionize the law of demurrer to evidence by reversing the rule that the demurrant waives his oral evidence contradicted by evidence of his adversary; and my reasons for this opinion are (1) that, before that act, all evidence upon such demurrer was certified, and hence the statute was not needed to bring up evidence in that instance; and (2) because, by demurring, the demurrant takes the case from the jury, and deprives his adversary of the right to have it pass on the evidence contradicting his evidence, including the credibility of witnesses. To hold that he gives up no evidence enables demurrant, at will, to take the case from the jury, and have the court to give him full benefit of evidence that is contradicted, which a jury would have discredited or deemed of little effect. Did this act mean to make a jury out of a court as to conflicting evidence on a demurrer to evidence? I think not. Hence, I think, section 4 of syllabus in Mapel v. John, 42 W. Va. 30 (24 S. E. 608) saying the demurrant waives no part of his evidence, is not tenable. Some may regard it peculiarly hard on *691railroads to hold them responsible for killing children on the track, on the theory that they own and should have absolute control of their track: but if any of us traveling an ordinary highway, or a farmer in his own field, were to drive a vehicle over a child when he could have been seen, and the injury avoided, the person doing the injury would be liable.
As to imputed negligence of the father: We do not regard the facts as sufficient to debar his recovery, and I shall add nothing as to that to what is said in the original opinion. The facts, therefore, do not squarely raise that question; and, where neither party can be affected one way or the other by its decision, we need not discuss the question. Stribling v. Coal Co., 31 W. Va. 82 (5 S. E. 321).