dissenting: This record leads me to the view that the issue of last clear chance was properly submitted to the jury.
It seems to me there was enough evidence on the plaintiff’s side to sustain the jury-finding that the engineer, in the exercise of reasonable care, should have stopped the locomotive before striking the plaintiff’s automobile. True, the engineer’s testimony tends to show he did not have sufficient time to avert the collision. He said: “The front pilot (the cow-catcher of the locomotive) got within 5 or 6 feet of the car before he moved. ... At that point, just as the automobile started to move, I applied the brakes and emergency, but I was so close to him the engine couldn’t possibly stop in that distance. . . . From the point I first saw him move and applied the brakes and emergency, it actually took 15 or 16 feet to stop the engine. Yes, sir, I applied the brakes when the car was turned toward the track.”
However, there is substantial evidence tending to support the contrary view, i.e., that enough time elapsed after the engineer discovered, or in the exercise of due care should have discovered the perilous position of plaintiff’s .agent, S. B. Taylor, to have enabled the engineer, in the exercise of reasonable care, to stop the locomotive and avert the collision: The engineer testified that after backing northwardly into Bell siding beyond the Byrd spur switch, where he picked up a car at a warehouse, he then proceeded back southwardly toward the spur track switch and the plaintiff’s office. He said: "I could see Mr. Taylor’s automobile all the way from the point where we started bade southwardly on Bell siding.” And the plaintiff’s witness Taylor, who moved the automobile, said he traveled “about 12 or 15 feet” before he was hit. This contradicts the engineer’s statement that the front of the locomotive was only 5 or 6 feet from the automobile before it moved. Moreover, the evidence as to distances on the ground tends to corroborate the plaintiff’s evidence that the automobile traveled from 12 to 15 feet, rather than only 5 or 6 feet. *672The engineer’s statement that he saw the automobile only during the interval it traveled the last 5 or 6 feet, when considered with the rest of his testimony and with the plaintiff’s evidence, lends support to the plaintiff’s contention that the engineer did not exercise due care to avoid the collision. This is further accentuated by the plaintiff’s evidence tending to show that the automobile was pushed 40 feet down the track and that the locomotive brakes were not applied until after the collision. Witness Taylor testified, in part, that the locomotive brakes were not applied until after he was hit: . . . “I heard the brakes when they caught against the wheels and the squealing. You could even see the fire coming from it. I know it and I saw it. My car had been pushed at least 30 feet when I heard that noise. ... It carried my car southwardly along Bell siding 40 feet before coming to a stop. ... I don’t think it was going over four or five miles an hour the last time I saw it. I didn’t pay any attention to it after I got in the car because I thought he was slowing up to go in Byrd’s spur.” The engineer said the speed of the engine was 5 to 8 miles per hour. The fireman said from 5 to 7 miles.
The following testimony of the conductor also tends to show that the engineer, in the exercise of reasonable care, might have stopped the locomotive during the interval the automobile was traveling the distance of “from 12 to 15 feet”: “Q. Don’t you know that a locomotive going six miles an hour can be stopped almost instantly? A. The conditions have a lot to do with that if the wheels pick up and slide. Q. I am talking about a fair day (and all the evidence shows the weather was fair) as you had with a locomotive of the type you had, going six miles an hour, if it can’t be stopped almost instantly ? A. It don’t take a great sight of space to stop one. Q. It should stop in 6 or 8 feet? A. If the conditions are favorable. Q. You said you had good brakes? A. I don’t know anything about that. Q. It should be stopped in 6 or 8 feet? A. I think a train moving at that speed, if conditions are good it ought to stop, yes. Q. 6 or 8 feet? (no answer).”
Add to this the evidence tending to show that the automobile was parked where it customarily stayed; that it was being moved by witness Taylor at the request of the conductor, so as to free this seldomly used spur track for a shifting operation thereon; that the automobile was being moved across both the spur and the siding tracks, the only way it could be moved, and like it had been moved many times before under similar conditions when the locomotive was to go in the spur track. The automobile was moved according to the established, customary pattern. But contrary to the customary pattern, the locomotive this time did not go in on the spur track, — and that’s the heart of this case. It passed the switch and struck the automobile on the other track, — on the Bell siding track. Why the trainmen did not follow the usual pattern, Mr. Taylor, *673in driving tbe automobile out of tbe way, knew not. Before be got in tbe automobile be saw tbe conductor going toward tbe switch, as if to throw it and turn tbe locomotive in on tbe spur, as was usually done. Why tbe switch was not thrown this time does not appear. Tbe conductor said be was standing there at tbe switch. All of this was calculated to lull Mr. Taylor into a sense of safety. It should have spurred tbe engineer’s call to diligence.
This evidence, it would seem, was enough to sustain tbe jury in finding, as they did, that tbe engineer, in tbe exercise of due care, should have averted tbe collision. I am constrained to so vote.