(after stating the facts). The testimony of appellant’s engineer and fireman show that they were keeping a lookout and that they saw Edmondson on the track but that he left the track and then again stepped upon it so suddenly that they did not have time, after doing all in their power to stop the train, to prevent the same from killing Edmondson. But the testimony on the part of appellee warranted the jury in finding that Edmondson did not leave the track from the time the whistle first blew for the station until he was struck by the train; that he was walking upon the track, with his head “drooped.”
If Edmondson did not leave the track from the time appellee’s witnesses discovered him walking on the same until he was struck by the train, then the engineer and fireman saw or could have seen his perilous situation in time, by the exercise of ordinary care, to have prevented injury to him, for the witnesses for appellee testified that their attention was drawn by the whistling of the train for the station, when they noticed that there was a man walking on the track approaching the train; that the whistle sounded before they could see the train, and that when the train -came in full view Edmondson was about half -a mile from it. Therefore, if the testimony of the witnesses for the appellee was true, the engineer and fireman saw, or by the exercise of ordinary care, could have seen Edmondson upon the track in ample time to have avoided injuring him if he had remained on the track; yet they say that he left the track and returned to it so suddenly that it was impossible for them to have prevented killing him.
(1-2) It will thus be seen that there was a sharp conflict in the evidence as to whether Edmondson left the track at all after he was seen by the engineer and fireman, and the jury were warranted in finding that he did not leave the track. Therefore, -giving the evidence its strongest probative force in favor of the appellee, it must be accepted as an established fact that Edmondson was seen, -or could have been seen, by the engineer and fireman for a distance of half a mile walking upon appellant’s track, and that he continued on the track until he was struck by the engine. Nevertheless, this fact alone would not render the appellant liable, for in walking upon appellant’s track Edmondson, under the circumstances, was a trespasser and appellant owed him no duty until its employees discovered, -or by the exercise of ordinary care could have -discovered, that he was in a perilous situation.
Appellant’s engineer and fireman testified that-there was nothing in Edmondson’-s appearance t'o indicate that he would not get off -of the track and that he did get off, and if this testimony was true, of course appellant’s servants were not negligent in failing to sound the alarm, or slow down, or -stop the train in order to have prevented the injury. But here -again there was a -sharp- conflict in the evidence. The testimony of a witness on behalf of the appellee was that Edmondson was “walking -along up the track with his head down;” that he had his head “drooped.” Witness thought from this that he was -sick or something was the matter.
(3) Counsel for the appellant contends that this testimony was contrary -to the physical -facts «and should not have been believed by the jury in contradiction of the testimony of appellant’s witnesses to the effect that Edmondson was walking with his eyes open right in-the face of the advancing train, and in contradiction of the testimony to the effect that he had good eyes and ears, and therefore must have been aware of his danger. But we can not say as a matter of law -that it was impossible for the appellee’s witness to have seen that Edmondson was walking with his head down. This was a question for the jury. Accepting the testimony of this witness on behalf of the appellee, the jury were warranted in concluding that Edmondson was oblivious of the rapidly approaching train and that the appellant’s servants discovered or might have discovered his condition by the exercise of' ordinary care in time to have prevented the injury. These were issues of fact, and they were submitted under instructions which correctly declared the law as announced in many decisions of this court. See St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513; Memphis, Dallas & Gulf Rd. Co. v. Buckley, 99 Ark. 422, and cases cited; St. Louis, I. M. & S. Ry. Co. v. Scott, 102 Ark. 417-421; St. L. & S. F. Ry. Co. v. Newman, 105 Ark. 284-288-9; St. Louis, I. M. & S. Ry. Co. v. Morgan, 107 Ark. 202-218-219.
Appellant’s prayers for instructions which the court refused were fully covered by those given.
The judgment is therefore correct and it is affirmed.