On Petition for a Rehearing.
Morris, C.An able and earnest petition for a rehearing has been filed in this case.
The appellant’s counsel, conceding that the testimony tends to show that the injury complained of was produced by its negligence, insists that, unless the evidence also shows, or tends to show, that the appellee’s son was free from contributory negligence, the demurrer to the evidence should have been sustained; and in determining this question he insists that all the testimony, as well that which was elicited on cross-examination by the appellant, as the testimony in chief put in by the appellee, must be considered. We understand the counsel to go further, and to contend that if there is any conflict in the testimony, as set out in the record, the court, in deciding upon a demurrer, shall weigh it, and deduce from it such conclusions as a jury might reasonably have reached. If there is testimony tending to show that the injured party was free from fault, and other portions of the testimony tend to show, by an apparent preponderance, that he was guilty of contributory negligence, the demurrer should be sustained.
We agree with the appellant that the burden was upon the appellee to show that her son was not in fault; that his negligence did not contribute to his injury, and that, unless the testimony tended to show that he was free from fault, the demurrer to the evidence should have been sustained. And we also further agree with the appellant, that, for the purpose of *450determining whether there was any testimony tending to show the injured party free from fault, the court should consider all the evidence in the case. But we still think, as was held in the opinion already announced in the case, that if there -was. any testimony in the case, legally tending to show that theappellee's son was not guilty-of contributory negligence, then the demurrer was rightly overruled, though other portions of' the testimony tended to show, with preponderating force, that he was in .fault. The court will not weigh, nor undertake to-reconcile, such conflicting testimony. If there is conflicting testimony to be reconciled and weighed, it is the right of the-parties to have this done by a jury, and neither party can deprive the other of this right by demurring to the evidence. Had one witness testified to facts legally tending to show the injured party free from fault,- and had two or a half a dozen other witnesses testified to conflicting or other facts, tending legally to prove him guilty of contributory negligence, a jury, had the question been submitted to them, might have believed the one and disbelieved the half a dozen witnesses, and found the appellee's son free from fault. And, had such been the case, this court would not disturb the verdict upon appeal.. So, upon demurrer to the evidence, the court will consider all the evidence, for the purpose of determining, as a matter of law, whether there is any evidence tending to shoAV that theappellee’s son was free from fault; if there is such testimony in the record, the court will draw the conclusion against thedemurrant. This the court must do, or usurp the duties and functions of the jury. If the court undertakes to weigh or reconcile the testimony or determine the credibility of witnesses, it must, obviously, assume the functions of the jury. This it should not do.
The only question in the case is, was there any testimony legally tending to show that the appellee’s son was free from fault ? The appellant contends that there was not.
It appears from the testimony that the train of the appellant, which struck the wagon in which the appellee's son was. *451riding, passed through a cut north of the crossing, about 600 feet long, and, at places, some ten feet deep. From the cut to the crossing, about 300 yards, the road was built upon an embankment at places eight feet high. There were bushes and briars growing upon the right of way and in adjoining fields, tending, in some measure, to obstruct the view and interrupt the sound of trains moving upon the appellant’s road. The train approached the crossing at a speed of thirty-five miles per hour; no bell was rung nor whistle sounded. The highway, upon which the appellee’s son was travelling, runs north and south, and passes over a hill some forty or fifty rods from the crossing. A short distance from the crossing, about fifty yards, there is a depression in the highway, from which a train moving through the cut on appellant’s road could not be seen. The highway begins to ascend to the crossing about thirty feet from the center of the railroad track. The appellee’s son was riding in a two-horse wagon, with three other boys about his own age. The team was driven by one William Sirp, who had the rightful control and management of it and the wagon. The crossing was in bad condition, and, when driven upon by Sirp, the fore wheels of the wagon were stopped by the plank nailed on the ties. The foregoing facts are not disputed. It may be fairly inferred, from his age, that William Sirp, who had charge of the team and wagon, was competent and fit to take and have charge of them.
William Sirp swears that he was driving the horses; that the crossing was in bad condition; that the fore wheels of his wagon stopped when they struck the plank nailed on the ties; that he looked up and down the track, but did not see the train; that he drove on the track, was struck by the train and rendered insensible; that he did not hear the train.
James McLin, the appellee’s son, who was injured, testified that he got into the wagon with William Sirp, who was driving it; that he could see part of the way up the railroad; knew it was there; looked up the railroad for the cars when they started up the fill at the crossing, and did not see the *452cars; had been playing, but was not when the wagon went upon "the railroad; did not see or hear anything before the wagon was struck, though he listened before they started up the grade on the track.
In determining the force of the above testimony, it must be borne in mind that James McLin had a right to act in some degree, upon the assumption that the appellant would give timely warning of the approach of its trains by the usual signals, and that he had also a right, in some measure at least, to rely upon the prudence and care of the young man in charge of the team. If, as he swears, he looked and listened for the train when they began to ascend the grade, not more than thirty feet from the center of the railroad, and did not see nor hear the approaching train, was he not free from fault ? What else was it his duty to do ? He looked and listened, but could neither see nor hear an approaching train. No bell was ringing, no whistle sounding. Everything indicated the absence of danger. He had a right to know, for such is the law, that it was quite as much the duty of the appellant to give timely warning of the approach of its cars to the crossing, as it was his duty to listen for such warning. He listened, but there was no warning; he looked but no train or danger could be seen. This was all the law, under the circumstances, required. While it is true that the failure of the appellant to give warning did not relieve the appellee’s son from exercising care to avoid injury,' yet the absence of such warning is a circumstance to be taken into consideration in determining whether he did exercise the degree of care required or not. Continental, etc., Co. v. Stead, 95 U. S. 161.
The appellant, however, insists that to look and listen was not enough; that the appellee’s son should have stopped the wagon. We think that to so hold, under the circumstances of this case, would be to devolve upon the traveller too exclusively the risks and duties at railroad crossings, and to relieve the appellant too entirely from responsibilities which the law justly imposes upon it. Admitting itself to have *453been-in fault, the appellant seeks to escape from the consequences of its own wrong, because the appellee’s son is blamable for not stopping the wagon in which he was riding, though he neither had the management nor control of it.
In the case of Masterson v. New York, etc., R. R. Co., 84 N. Y. 247 (38 Am. R. 510), the plaintiff was, by the invitation of the driver, a stranger to him, riding in a wagon upon a highway crossed by defendant’s road. A wheel of the wagon went into a hole between the rails of defendant’s track, and he was jolted from the wagon and killed. It appeared that the driver was a sober man, and apparently fit' to have charge of the team. The defendant asked the court to charge the jury, that if the driver’s negligence was the proximate cause of the jar, the plaintiff could not recover. The court refused this charge; the court of appeals held the refusal right, on the ground that the deceased had no control of the wagon, and was not guilty of negligence in riding in it with the driver.
In the case of Dyer v. Erie R. W. Co., 71 N. Y. 228, which is really this case, it was held that where one travels in a vehicle over which he has no control, but at the invitation of the owner and driver, no relationship of principal and agent arises between them, and that although he so travel voluntarily and gratuitously, he is not responsible for the driver’s negligence, where he himself is not chargeable with negligence, and where the driver was competent to control and manage the team. The same doctrine was held in the case of Robinson v. New York, etc., R. R. Co., 66 N. Y. 11 (23 Am. R. 1).
In the above case the authorities are extensively reviewed and carefully considered. In holding that the appellee’s son was not, under the circumstances of this case, guilty of negligence because he did not stop before going upon the appellant’s road, we need not, nor do we, go so far as the above cases go; Ave only hold that the facts tend to show that the injured party was free from fault.
It is true, as the appellant contends, that the testimony of Thomas Shiveley tends strongly to show that if the appellee’s *454son had listened he might have heard the approaching train; but the son’s testimony tends just as strongly to prove that Shiveley could not hear the train, as does the latter’s tend to prove that the former could have heard it. We will not attempt to determine which was right. The team, which was hauling appellee’s son, was going slowly. It would take it some seven or eight minutes to pass from the hill to the crossing, some forty or fifty rods. When the wagon was on the hill, the train must have been at Edwardsport, and when the team was in the low part of the highway, some thirty feet from the railroad track, the train was probably in the cut, and not visible to the appellee’s son. It would pass, going at thirty-five miles per hour, from the middle of the cut to the crossing, while the team would pass up the grade on to the track. It is, therefore, not at all improbable, that the appellee’s son looked and listened, and neither heard nor saw the coming train.
The petition should be overruled.
Per Curiam. — Petition overruled.