On Rehearing.
NICHOLLS, J.Defendant contends that, in view of the notice given of the approach of the west-bound train to Crowley by the whistle of the locomotive sounded at the whistling post about a mile to the east of the city, it was the duty of Harvey to have started earlier than he did to take his truck to the west of the baggage truck of the company, which was already standing between the south rail of the track and the platform which ran out from the depot to the track; either that, or that his movements should have been more rapid than they were. It maintains that, had this been done, the accident would not have occurred, as he would have reached the objective point he was aiming for in safety. We think these propositions were beyond question true, but in testing his conduct we must ascertain what the conditions usually existing were when trains came up to the depot from the east, and what they were on the night of the accident. The evidence shows that there is a water tank a very short distance above the city, at which trains from the east usually stopped to take on water before entering Crowley; that when they moved forward they did so with only such speed as would be given from the movement of the train resulting from its moving over the short space between the tank and the depot with the momentum given to it in view of an immediate stop. On the night in question the train was 20 or 25 minutes late, and was evidently trying to make up time, as, instead of stopping at the tank as usual, with the delay and loss of speed incidental to the stop at the tank, it passed directly to the depot. The length of time taken by the train to go from the whistling post to the depot was less than usual, while the speed at which it came in was greater. Harvey’s course was evidently guided by what would have happened had matters taken their usual course. Had they in fact taken such course, Harvey, we think, would have reached the point he was aiming at without risk or danger. Under the conditions actually existing, his action was imprudent, and, as it turned out, attended with fatal results to him. The testimony is conflict- ■ ing as to the speed at which the train came to the depot, but we think the jury had reasonable ground for reaching the conclusion that it was unusual. Outside of the testimony actually introduced, the probabilities are in support of that conclusion. The evidence goes to Show that the depot grounds were not sufficiently lighted by the company, as they should have been. Had they been lighted, the engineer would have seen Harvey’s position by the side of the track clearly and distinctly. As matters were, he saw indistinctly what was at the depot. We give substantial extracts from the testimony of Williams, the engineer of the train, given on cross-examination, leaving out most of the questions. Witness in going into Crowley did not see Mr. Harvey. He saw some one. He did not know whether it was Harvey or not. He saw a man pulling a truck right beside the track. He was about 50 or 60 feet ahead of the engine at or near the freight depot. He was pulling a truck. He was right alongside of the track. Witness saw that it was away from the track, and that there was no necessity of his paying any attention to it at all. It was away from the track when he saw it. In the testimony given on the first trial of the case he said something about the truck, but he did not see the man pulling it. He said he saw the truck about the length of a car and a half before the engine — something in the neighborhood of 75 feet.
Leaving his former testimony, the witness, coming back to the night of the accident, said he saw on the right of way a little platform extending out, but nothing else. He *1077did not see a truck there loaded with baggage. He did not know how far Mr.. Harvey was from this platform when he first saw him. He was looking down the track, and not paying much attention to those off the track. The pilot beam projected about two feet from each side of the rail. The train was moving at the rate of six or eight miles an hour — something like that. Asked why he did not stop the train, he answered he did not think he was going to come on the track. Witness never paid any attention to the baggagemen and expressmen moving their trucks about. Asked whether he was not always on the lookout for danger at the stations, he answered, “Between all stations I look out for danger between the rails.” Referring to the testimony given by him on the first trial, he said that he had stated “that he saw a truck slowing up near the track, but could not see the man. He was in the dark.” Referring (on the second trial) to the air brakes on the train, he said the brake was what is known as a “low-speed brake.” After reducing the air pressure to 15 or 20 pounds you could stop no quicker. The air brake would carry 70 pounds. It carried that that night. Seventy pounds would, of course, stop quicker than 50 or 20. When he saw Mr. Harvey he had nearly all the brakes on that he could. He could have put on two pounds more, he thought. Asked the question with reference to that train at the rate of six miles an hour and all air applied, “could you have stopped your train within a distance of fifteen or twenty feet?” he answered, “Yes, he could, and would have done it had he thought he was going to get on the track.” He could have stopped sooner by using the lever — the reverse lever. The effect of that was to reverse the steam and stop the train. He did not reverse the engine that night. It was too quick. He was on the track too quick. The train must have struck the rear end of the truck. Harvey was not on the track when struck. He was too close to the track to pass by without striking him. Witness had notice of the city ordinance requiring the speed of the train to be reduced to six or eight miles an hour. He got his information from his time card. On the first trial of the case witness testified that he first saw the truck about 10 feet west of the platform, about the length of a car and a half ahead. Asked, “What did you do then?” he answered, “I stopped.” Asked, “Did you apply the emergency brake?” he answered, “No, sir.” Asked, “You made no effort whatever to stop that train?” he answered, “My train was under control, and I stopped at the usual place, and the emergency brake could stop no quicker.”
It is evident from the testimony of the engineer that he did not consider his duty of keeping a lookout for danger ahead extended. beyond the ground inside of the rails. That he was not called upon to take into consideration the condition of things existing just outside of the rails as to objects within two feet of the rails, which were bound to be struck by the pilot beam. In this view of his duty the engineer was greatly mistaken. That portion of the ground ahead was subjected to his scrutiny as much as that within the rails, particularly at such a danger point as the immediate surrounding of the depot of a city, where conditions are likely to exist at any time which would lead up to death and injury. It is evident from his own testimony that the engineer, after seeing the truck as close as it was to the tracks, took no steps whatever to check the train, but left matters to run precisely the same course which they were running before, as if he had not seen it. He seems to be of opinion that, having blown the whistle at the whistling post, and slackened the speed which the train had at that point, he had no further duty to perform, and no concern as to what might happen thereafter, unless as to some object which might actually come inside of the rails.
*1080We need scarcely say there was great mis-' conception by the engineer as to what his position called for. It is claimed on his behalf that he was not called on to anticipate that the company would place one of its baggage trucks between the projecting platform and the rails, and that at the precise moment the train was approaching an express-man would attempt to pass between the baggage truck and the rail. It may well be that that particular state of facts might not have been anticipated, but he was bound to anticipate that at such points some dangerous conditions might exist calling for special immediate action, and he should have been prepared to meet it to the full extent of the instrumentalities within his power, governed as to this by no conventional rule. The engineer admits himself that the instrumentalities within his control were not exhausted. Besides other instrumentalities, a single tap on the bell at the opportune moment might have saved Harvey’s life.
In the event that the court should hold that Harvey was guilty of contributory negligence in moving with his truck at the time and place he did, counsel of plaintiff invoke an application of the doctrine “the last clear chance,” and refer the court to the case of Bogan and Wife v. Carolina Central Railroad, 129 N. C. 154, 39 S. E. 808, reported in the 55th Vol. Lawyers’ Annotated Reports, page 418; to Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270, and Grand Trunk R. R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; to Kramer v. New Orleans City and Lake R. R. Co., 51 La. Ann. 1689, 26 South. 411; McGuire v. Vicksburg, Shreveport & Pacific R. R. Co., 40 La. Ann. 1543, 16 South. 457; Lampkin v. McCormick, 105 La. 418, 29 South. 952, 83 Am. St. Rep. 245; Downing v. Morgan’s La. & Texas R. R. Co., 104 La. 508, 29 South. 207; McClanahan v. V. S. & P. Ry. Co., 111 La. 782, 35 South. 902; Becker v. L. & N. R. Co. (Ky.) 61 S. W. 997, 53 L. R. A. 267, 96 Am. St. Rep. 459; Shear. & Redf. Neg. vol. 2, §§ 483, 484.
Two juries by their verdicts found this claim of the plaintiff to be well founded, and this court has, on an independent examination of the facts, found likewise. We have on this rehearing examined the testimony, and we do not think we would be warranted in undoing what has been done already. On the contrary, we think the jury (in the exercise of the right and authority conferred on it) could well have found a state of facts which would have justified their verdict. We should therefore leave undisturbed the judgment heretofore pronounced by us in this case, and it is hereby so ordered and decreed.
MONROE, J. I dissent.