(dissenting).
I ám unable to reach the conclusion that0-there was any. evidence in the ease to sustain the verdict. In order to' sustain his action it was necessary for. the plaintiff to prove-that the railway company knew that the commander of the troops had reasonable cause -to Relieve -that' the revolutionists were:*753on the passenger train when it was met by the troop train at La "Pascua. There was no evidence that the defendant knew that the revolutionists were on the passenger train when it left Turrialba. On the contrary, there was evidence that the defendant’s general manager and its superintendent had received a communication from the conductor of the passenger train, which he sent or caused to be sent from Turrialba, stating that the revolutionists had surrendered the train, and that this information had been given to the governor of Limón and his permission obtained to move the passenger train from Turrialba. Obviously the governor know that the revolutionists had surrendered the train before it left Turrialba, which it did, as testified by the plaintiff and the conductor, about 5:30 p. m., and by the train dispatcher, between 5:30 and 5:45 p. m. How long before the train left Tur-rialba the governor was notified the evidence does not disclose.
Dingledine, the assistant train dispatcher, testified that he received a communication to this effect from Ramsey at Turrialba about 5:15 p. m., immediately after he went on duty, which was at 5 p. m., and that he at once notified the superintendent.
If it can be said that, under all the circumstances, it was the duty of the defendant to notify the troops that the revolutionists had surrendered the passenger train, this duty was discharged when the governor was notified. The troops had been dispatched under his direction, and their commander was subject to his orders, and not to those of the officers of the railway company.
It appears from the evidence that the governor had access to the telephone in the dispatcher’s office at Limón and had used it during that day; that he also had access to another line. If any necessity existed for notifying the troops that there were no revolutionists on the passenger train, the railway officials had a right to assume that the governor had performed his duty and notified them, as ho said he had.
There was nothing about the appearance of the train which was different from that of an ordinary combination freight and passenger train, and the fact that orders were given from the railroad offices at Limón to the troop train at Las Lomas to cross an east-hound special at La Pascua was in itself sufficient to notify the troop train that the special which it was to meet was not a hostile train. The whole situation, as developed by the evidence, was one which furnished no basis for any finding by the jury that the defendant knew that the troops had reasonable grounds to believe that this passenger train was carrying revolutionists when met at La Pascua. There was undisputed evidence that when the troop train arrived at La Pascua the officers in charge of the troops received information that there wore no revolutionists aboard the passenger train. When the engine of the troop train was opposite the engine of the passenger train the conductor of the latter, who was standing upon the ground between the two trains, flagged the oncoming troop train, and told the engineer that the revolutionists had destroyed a bridge near Torito. Two officers then alighted from the troop train, and one of them inquired of the conductor what the train upon the siding was, and was told that it was the regular passenger train from San José to Limón. A witness for the plaintiff, who was standing near by, testified that the conductor told this officer, both in English and in Spanish, that there were no revolutionists aboard the passenger train.
Vieteh, a witness for the defendant, a consular agent of the Italian government, who was also there, testified that he wá's asked by the other officer what the train on the siding was, and he told him that it was the passenger train from San José to Limón, and that it had no revolutionists aboard.
The record contains only an abstract of the testimony, and the questions of the officer which drew out this information are not given; but presumably they were given in answer to inquiries of the officers whether there were any revolutionists aboard the passenger train. The officers evidently did not believe the statements of the conductor and the other party, and when the conductor of the passenger train ordered his train to move along the siding they ordered it to stop, and the troop train was started. When the ears of the troop train came opposite the two coaches of the passenger train, one of these officers raised his sword and gave the command to fire. The windows of the coaches of the passenger train were open, and there was evidence, that several passengers, women among them, could be seen looking out of the windows when the firing began, and that one woman was killed who was looking out of a window.
The consular agent who was standing between the two trains received one or two bullets through his clothing, and escaped further injury by diving under one of the coaches of the passenger train. As a re-*754suit of this shooting 15 or 20 passengers in the passenger train were wounded and 4 or 5 killed. Among the wounded was the plaintiff.
There was uncontradieted evidence that this shooting occurred at about 7 p. m., when there was perfect visibility for a distance of 200 feet. There was no armed person on or about the passenger train, and there was nothing about its appearance to create a suspicion, certainly not a reasonable belief, that it had armed revolutionists aboard. It is evident that the exercise of the slightest degree of caution would have satisfied the officers in charge of the troops that the statements of the conductor and of the Italian consular agent were true.
I eannot escape the conclusion that the verdict of the jury that the defendant was guilty of negligence under the law of Costa Rica was not sustained by the evidence, and that the District Court did not err in setting it aside.