dissenting.
In my opinion there is no evidence of actionable negligence on the part of defendant.
The following opinion on motion for rehearing was filed July 9, 1923. Former opinion vacated, and judgment of district court reversed.
Hoard before Letton, Rose, Aldrich, Day and Good, JJ., Blacicledge, District Judge. Rose, J.This is an action to recover damages for negligence. After dark,. December 11, 1917, a passenger train going west on defendant’s railroad ran into a herd of plaintiff’s cattle at a highway crossing west of the station at Buda and killed 45 head, worth $4,757. At that place the railroad extends east and west and crosses the *794highway at right angles. Erom the station at Buda the highway runs west about 2,000 feet along the south side ol the railroad, turns north and crosses defendant’s tracks. Plaintiff drove his cattle west along the highway from the station, turned north and was attempting to cross the railroad tracks when the collision occurred. The railroad grade at the crossing is about 18 inches above the natural level of the ground. A freight train, headed west, from which the cattle had been unloaded, stood on a switch south of the main lines. Plaintiff pleaded that defendant negligently left a glaring headlight on the freight engine, permitted it to shine on the crossing, to cast shadows north of the railroad tracks, to frighten the cattle, and to make them unmanageable. As a resulting loss plaintiff demanded judgment for $3,000. Defendant denied negligence and liability for damages. The jury rendered a verdict in favor of plaintiff for $2,000 and interest computed at $472.13, or a total of $2,472.13. Prom a judgment thereon defendant appealed. Upon a former hearing the judgment was affirmed. Lawson v. Union P. R. Co., ante, p. 785. The sufficiency of the evidence to sustain the judgment being in doubt, a reargument was granted. The case has been re-examined in the light of new briefs and able arguments at the bar.
The only issue of negligence submitted to the "'jury was the act of defendant in permitting the headlight of the freight engine to shine undimmed while the cattle were on the crossing. If proof of that fact was not evidence of actionable negligence, there was nothing to submit to the jury and their verdict cannot stand.
It is only where different minds may draw different conclusions from evidence of a fact in issue that a question for the jury is presented. If there is no evidence of the fact the jury should not be permitted to make a finding. Was proof that the engineer and fireman left the headlight shining on the crossing evidence of actionable ' negligence? The answer depends *795on whether they could reasonably .and probably have-anticipated the consequent. frightening ■ of, the cattle. Plaintiff seems to recognize this principle of the law. of negligence and argues that any person with common experience, and knowledge, knows that a glaring light thrown into the face of animals only a short distance away will frighten them. The light was not thrown in the face of the animals. It was shining on the crossing from the east at a point 300 feet away when the cattle approached from the south. There is no evidence that the engineer or the fireman knew that cattle had a propensity to scare at lights and shadows. Plaintiff was an experienced cattleman and was" familiar with the highway at the railroad tracks. While the headlight was shining, assisted by three mounted men, he attempted to cross with the animals in the face of a warning by one of his own employees that a train was approaching. If, as an experienced cattleman, knowing, as he did, that the light from defendant’s engine was shining on the crossing, he did- not anticipate what happened, is it fair to assume without proof that the engineer and fireman, in reason and probability, knew the propensities of the animals and that the light and shadows would frighten them and make them unmanageable? It seems more reasonable to assume the contrary in the absence of proof, since engineers and firemen in the performance of their duties at night necessarily cross highways at different elevations above the natural surface of the ground, throw light on public crossings at varying angles, cast shadows along railroad tracks, observe the custom to light highway crossings in cities, villages, and country places and witness the endless caravan of moving automobiles as they throw light and cast shadows at highway crossings everywhere. The headlight was one in ordinary use and was part of the necessary equipment. The freight train was standing on a sidetrack near a station where the engineer was awaiting orders to proceed. He had a right to have his train *796ready. If he and the fireman could not have reasonably and probably anticipated the consequence of permitting the'light to shine undimmed, they did not owe plaintiff the duty to stay on the motionless engine, watch the crossing and dim the light when the cattle were driven upon the railroad tracks. The better view of the record is that the verdict is without support in the evidence. It follows that the former opinion is withdrawn, the judgment of the district court reversed and the cause remanded for further proceedings.
Reversed.