(dissenting-) •
The only question in this case is whether there was sufficient evidence to justify the submission of the question of the negligence of the fireman and brakeman to the jury. The trial court determined that appellant’s evidence was insufficient. In the accompanying opinion, it is held that there was proof from which the jury could properly have found, from a preponderance of the evidence, that the fireman and brakeman were negligent, either in their failure to call, or repeat, the signals to Bowser, and (whether or not they were so negligent) in their failure to stop the engine, after it had proceeded through a red light stop signal.
The strength of appellant’s case lies in this: That there was a duty on the part of the brakeman and fireman to observe all signals within their vision, and to call them out to Bowser; that there was an obligation on their part to use due care to avoid a collision ; that they could have stopped the engine after it had proceeded past the red light signal, and so avoided the collision; and that, nevertheless, the engine did proceed past the red light signal, whqre it should have stopped, and continued on for 428 feet, where it collided at a cross-over track with the engine coming from the east.
The questions for determination are whether, in the exercise of due care, they could have called the signals to Bowser; and whether, in the exercise of due care, they knew, or should have known, that the train had proceeded through a stop signal, and should have brought the engine to a stop before the collision. On the question of Bowser’s alleged insensibility or incapacity to operate the engine at the time of the collision, there was no evidence, in my opinion, from which reasonable inferences could be drawn that he was in a state ■of coma at the time of the accident.
In considering the question whether there was evidence of negligence on the part of the fireman and brakeman, it is to be remembered that they, with Bowser, were killed in the collision, and are, accordingly, entitled to the presumption that they were free from negligence, and acting in the exercise of due care at the time of the accident. As to their observation of signals, their calling them to Bowser, and their claimed negligence in not stopping the train before the collision, we may first consider the fact that the engineer rides on the right side of the engine cab, and the fireman and brakeman on the left side. Often, the engineer can see a signal from his side of the engine, which the fireman and brakeman cannot see from their side. This usually happens on curves. In this case, appellant’s counsel sought to introduce evidence to the effect that the fireman and brakeman could have seen Home signal No. 2 (the red light signal in question) as easily as could the engineer, Bowser. Counsel in examining the witness Frizzell, the engineer of the other train, asked:
“Q. Now, in making the movement which Extra 2750 (Bowser’s train) made out of the yard and over to the eastbound track, does the engineman have a view of Home signal No. 2? A. He does * * *
“Q. Gan the fireman see that signal ? A. Well, no, not as well as the engineer can see it. He can get a glimpse of it, too, when the engine is on the cross-over, and then when it starts to make the right hand curve his view is obscured. He can’t see around the front end. He could, possibly, if he leaned away out of the window and looked around.
“Q. He can see it when he is at the UN Tower can’t he? A. Before he gets over the cross-over.
“Q. He can see it before the cross-over at UN Tower is completed? A. Before the movement is completed, yes. * * *
“Q. From the time you complete crossover 13 and get on to the eastbound main track, coming east out of the yard, do both the engineman and the fireman have a clear view of Home signal 2? A. I haven’t rode the left side of the engine, I couldn’t tell you just exactly, but the fireman’s view is obscured after we get on the eastbound main and the engine starts to cross to the right, then his view is more or less obscured and he may not be able to see it without leaning away out of the window.”
From the UN Tower to Home signal No. 2 the distance is 1076 feet. The end of the cross-over on the main track is 207 feet east of the tower. Therefore, the fireman or brakeman, acording to the above testimony (which is the only testimony in the ■case on the point) could only have caught a glimpse of Home signal No. 2, when they were approximately 900 to 1100 feet from *442the signal. This glimpse would have been down a long curve, while they were passing over to another track; and they might not have been able to see the signal again as they approached it, unless they leaned far out of the window. -But the engineer could have seen it practically continuously for this entire distance.
If it was the duty of the fireman and the brakeman to call the signal to Bowser, or to repeat aloud his call of the signal to them, when the engine was crossing over to another track at the UN Tower, we must assume that they so called or repeated the signal, as their due care and discharge of duty is here presumed by law, and there is no evidence or proper inference to be drawn from the evidence, to the contrary. This being the case, the brakeman and the fireman, in the exercise of due care, may well have been completely ignorant of the fact that the engine passed the stop light a thousand feet beyond the tower, for, as far as is disclosed by the evidence, the brakeman and fireman, from their side of the cab, may not have been able to see- — and probably were not able to see- — -the stop signal when the engine proceeded past it. They would therefore not know whether it had been passed before the collision, for the signal was on the engineer’s side of the track, and the evidence above mentioned shows that their view of it was probably obstructed.
Bowser was the man who could see the signal plainly. If he was inattentive and did not see the signal, or did not call it out to the fireman and brakeman, there was no evidence that they would have had any way of knowing that the engine had passed through a red stop light, or that they would have had any knowledge that would have required them to take control of the train from Bowser and stop the engine. Under such circumstances there would be no evidence from which inferences could be reasonably drawn, to overcome the presumption of due care, that they had negligently failed to interfere with Bowser’s control of the engine, and stop the train.
At the time of collision, the brakeman was sitting on his seat at the left of the cab. Bowser was in his seat on the right of the cab. The fireman apparently was standing in between them, behind the end ox the locomotive boiler. If the presumption of due care be indulged, all three men would be entitled to such presumption, unless it was overcome by proof to the contrary. In the case of Bowser — if the proposition were in issue — it would be a serious question whether the presumption had been overcome by proof that he proceeded through a red light that was plainly visible to him. If his attention was elsewhere at the crucial time, and if he neglected to see the signal, it would not be the first time that an engineer in full possession of his faculties has negligently proceeded through a stop signal with disastrous results.
Furthermore, it may be observed that none of the foregoing discussion takes into consideration the written rules and regulations governing the operation of trains, issued by the company and binding on engineers, firemen, brakemen, and other employees of the railroad, and which provide that -a fireman or brakeman may take over the control of a train from the engineer only when the latter is insensible or incapable of operating the engine. Under these rules, neither the fireman nor brakeman could be found guilty of negligence in this case, especially in view of the presumption of care which must be entertained and applied in any consideration of their conduct at the time of the accident.
There was no proof that the signal was visible to the fireman and brakeman — in fact, the proof in this regard is to the contrary. I find no evidence from which a reasonable inference could be drawn that the collision was caused by the negligence of the brakeman and fireman, either by their action, or by their failure to act.
In the prevailing opinion, in this case, it is held that the jury had the right to infer that the deceased engineer, Bowser, was incapable of stopping his engine at the critical moment, in the light of testimony tending to show that he was in a diabetic coma, or in a state of in-attention caused by diabetes. This, of course, would bear upon the claimed negligence of the fireman and brakeman, in not taking over control of the train, after they had seen, or should have seen, Bowser insensible or incapable of operating the engine. I am unable to agree that there is -any proof or evidence, from which reasonable inferences could be drawn that Bowser was in a state of diabetic coma at the time of the accident. True, it is conceded that he had sugar diabetes. But, from the time the disease was first diagnosed and for three years thereafter until the time of his death, he had been treated by a physician, who examined him every two weeks during that period up to Septem*443ber 1939. A diet had been prescribed, which was carefully followed by Bowser; and his physician — of large experience in such cases — testified that he never had a patient that responded better to the treatment for diabetes. In fact, the doctor stated that so well did Bowser follow instructions, and his prescribed diet, that he did not think anyone would have known that he was ill in any way during this time. Bow-ser’s step-daughter was a registered nurse, who arranged for the kind of meals required by the diet, and who made regular urine tests, which showed that, through following the diet, Bowser had been able to control the amount of sugar in his blood. One of these tests, made by the nurse on the night of Bowser’s death, of urine that he had voided the morning before, showed no sugar in the urine. Bowser did not require the use of insulin, and did not take it.
The conclusion that Bowser had suffered a coma just before the collision is based upon the testimony of the pathologist, who performed the post mortem, and who testified that in his opinion Bowser had suffered a diabetic coma. His opinion was based upon the fact that Bowser had diabetes, and that (1) he might have taken an excessive amount of insulin to overcome a large meal that he was in the habit of taking, or (2) that he had a heavy meal of certain articles of diet that would lead to an increase of sugar in his blood, which would tend to bring on coma. This is the crucial testimony in the case on whether Bowser suffered a coma before the accident. It seems to me that no reasonable inference could be drawn from such expert testimony, that Bowser suffered a coma at the time of the accident.
In the first place, Bowser never took insulin — at least his step-daughter, the registered nurse who regularly supervised his diet, medication, and urine tests, said that he had never taken it. From all the evidence he had no need of it. His physician said he had never prescribed it, and that Bowser never used it. There is no testimony connecting Bowser with the use of insulin, except the pathologist’s guess that coma might have been brought on by Bow-ser’s having taken an excessive amount of insulin — if he took insulin. With respect to the other inference, drawn by the path- . ologist that coma had resulted from Bow-ser’s indulging in a heavy meal which he was in the habit of taking, and which included articles of diet that would lead to an increase of sugar in the blood — which tends to bring on coma in diabetes — I am unable to find any evidence in the case from which such an inference could reasonably be drawn.
A brief review of the testimony, on which counsel for appellant base their claim that the deceased suffered a coma at the time of the accident, discloses that the pathologist was first asked whether in his professional judgment Bowser was in a diabetic coma. This question was objected to on the ground that it was incompetent, irrelevant and immaterial. The trial court overruled the objection, stating, however, that counsel might ask to have the testimony stricken after cross-examination. The witness then answered that in his opinion Bowser was in a coma.
“Q. Will you state what in the autopsy findings from an examination of his body supported that opinion ? A. The lesions in the pancreas. I can go into detail, if that is what you like. I don’t know if that will be profitable, but it showed that diabetes mellitus shows characteristically in the pancreas, if that is what you mean. * * *”
The witness was then asked the hypothetical question:
“Q. Dr. Bruecken, assuming that acting under medical advice, he sought a medical examination in October of 1936, that he was then examined by a physician, Dr. William C. Newcome, who found sugar diabetes mellitus, made that diagnosis, and thereafter for a period of three years treated him for that condition, by placing him on a strict diet and giving him, in capsule form, pancreatic extract, and also a liver medicine with iron in it, to which treatment he responded apparently satisfactorily, so as to reduce the presence of sugar from tests taken at regular intervals of his urine — taking that history into consideration in connection with your autopsy examination and findings, will you state whether or not that history in connection with the autopsy findings supports your conclusion that this man was in a diabetic coma prior to his actual death ? A. I wish you would have said “diabetes”. That would be easier. But I think it does support my autopsy findings, particularly with the presence of a heavy meal in the stomach—
“Mr. Casey: That is not in the question.
*444“The Court: Give your response first, and if counsel should later want you to explain, why, he can ask you that. * * *
“Q. Will you state what you found as to a heavy meal in the stomach ? * * * A (Witness reads from report as follows: ‘The stomach was considerably distended and filled with a large amount of soft material, only partly digested. Small pieces of vegetable could be made out;’) It is pretty hard to make out everything, of course, but there was still a large amount of soft mate-, rial, only partly digested. Small pieces of vegetable could be made out.”
The witness was then asked:
“Q. What effect would a heavy meal, such as you found there, have on a person suffering from sugar diabetes mellitus?”
Here, it seems to me is- the crucial part of the testimony. For it will be observed that the foregoing question was never answered, although the witness glossed it over, and his response is relied upon by appellant as evidence from which an inference of coma can be drawn. What the witness actually answered was:
“A. Well, that is common knowledge. Transgressing the doctor’s prescription— prohibition, you might say — of certain articles of diet, would lead to an increase of sugar in the blood, and increase the condition proportionately, depending on how much of a counter-indicated food he ate, like starches, sugars, etc.
“Q. Would you state whether or not that would tend to bring on diabetic coma? A. Most assuredly, that is what does it. It is the only thing that does it.” (Italics supplied)
There is here no reply to the question addressed to the witness of what would have been the effect on a person suffering from sugar diabetes, of a heavy meal, “such as you found there”. The answer was only that transgression of the doctor’s prohibition in eating food that would lead to an increase of sugar in the blood — depending on how much of a counter-indicated food he ate — would tend to bring on coma. But there was no proof that deceased had transgressed the doctor’s prohibition, or that he had eaten counter-indicated foods that would cause an increase of sugar in the blood. Moreover, it was not inadvertent on the part of the witness to answer in the fashion he did. He did not know that, as he had rather glibly put it, the deceased was "in the habit of taking” a heavy meal. He did not know whether the deceased had eaten of such counter-indicated foods or not. He had no knowledge on the subject. But the cross-examination is illuminating, as showing that his entire conclusion as to a coma was only a guess, unsupported by evidence or reasonable inferences to be drawn from the evidence in the case. He testified on cross-examination that he could' tell from the diseased pancreas that the deceased had diabetes; but that he could not determine from morphological findings that Bowser had suffered coma. The witness-said that he had assumed that deceased had been in a diabetic coma, “because of the meal and the history, the partially digested meal from which he had absorbed a good deal, which gave him the rise in his sugar and that would lead to coma. Now that is the way I assume it. I did not prove it with a blood sugar test, because I couldn’t. He was embalmed.”
He was then asked if he would not have to know before arriving at any conclusion as to coma what the type of food was that the deceased had consumed and when he so consumed it. “Oh, that would be naturally of some weight,” he replied. “If it consisted of a great deal of carbohydrates— well, he had those. I did identify vegetable matter that was not yet digested, so he had carbohydrates undoubtedly.”
Then came the important question:
“Q. So far as you know, though, he might have been adhering to his diet, and that meal might have been strictly on the diet given to him, is that correct? A. That is true; I could not tell from the digested state how much carbohydmte was present.”
The obvious conclusion that the supposition of coma was based merely upon speculation, followed, as indicated in the remainder of the cross-examination of the witness.
“Q. So what you are saying doctor, is that Harry Bowser might have had a diabetic coma, is that correct? A. I said that from the very beginning. It is assumption.
“Q. And he might not have had? A. That is true, too.
“Q. Isn’t it true, Dr. Bruecken, that there are a great number of people with a diseased pancreas such as you found, who do not go into coma? A. That is true. That is correct. Along that line I might simply add the tendency to sleepiness even after an ordinary meal in a healthy person. One could invoke that somnolence. I made *445that very clear in my notanda, that I am not at all sure of diabetic coma.
“Q. You also in your notanda said ‘or inattention’ ? A. That is right.
“Q. So all of these are assumptions on your part? A. They are all assumptions. I didn’t say there was inattention, I didn’t say there was coma, but I had to make a diagnosis under the circumstances, and I think that is the best diagnosis.”
As far as is disclosed by the record then, coma could be reasonably inferred from: (1) An excessive use of insulin; or (2) a violation of the diet prescribed by his physician. There was no evidence of any use of insulin in the case. Violation of the prescribed diet could be proved or inferred in either of two ways — what kind of food was found in the stomach of the deceased, and whether there was sugar in his blood. There was no proof of either. The food was not analyzed. No test of blood was made. There was no other evidence in the case from which coma could be inferred.
There were some remarks about a “large meal” or a “heavy meal.” Rut all testimony by the pathologist as to coma was based, not on the size of the meal, but on transgressing the doctor’s prohibition of certain articles of diet. It was never testified that merely a large meal would bring on coma, and we are not informed from the record how large a meal was considered a “heavy meal”, by the pathologist. As far as proofs go, we only know that there was no evidence that the deceased had violated his physician’s instructions as to the size of the meal consumed or the kind of food prescribed for him — which he had eaten for the preceding three years with as successful a response and control over diabetes as any patient his physician had ever known.
From the foregoing it would appear that there was no evidence from which inferences could be reasonably drawn that the deceased suffered diabetic coma at the time of the accident. It is more reasonable, as I see it, to say, from the evidence, that he probably did not suffer coma, than to conclude that he did. Certainly there is no basis in what has been testified to from which reasonable inferences could be drawn that deceased suffered a coma at the time of the accident.
If there was no evidence from which to conclude that deceased was in a coma, there was no evidence that he was incapable of stopping his engine at the critical moment and nothing upon which to base conclusions-that the fireman and brakeman, in the cab with the deceased, were negligent in not stopping the engine themselves. For there was nothing to put them on notice that Bowser was incapable, or, as heretofore stated, they had no notice of anything that would require them to stop the train, in the exercise of due care.
In accordance with the foregoing, I am of the opinion that appellant did not overcome the presumption of due care on the part of the fireman and brakeman and did not sustain the burden of proof; that there was no evidence from which reasonable inferences could be drawn that the fireman and brakeman were guilty of negligence; that the trial court properly directed a verdict in favor of appellee; and that the judgment of the district court should be affirmed.