delivered the opinion of the conrt.
A mail and passenger train of the American Railroad Co. of Porto Rico traveling at night with its lights on killed *213Modesto Rodriguez shortly after having crossed a road of the Guánica Central. This action for damages was brought on the basis that the death was caused by the negligence of the employees of the defendant in not having blown the whistle or sounded any alarm on passing the said place. Judgment was rendered by the conrt against the plaintiffs and they took this appeal in which the three errors assigned by them for a reversal of that judgment are based on the sufficiency of the evidence to support a judgment against the defendant.
The evidence was clearly preponderant in the sense that the engineer of the train blew the alarm whistle on approaching the crossing, but the appellants allege that it appears from the testimony of the engineer that the death occurred because he had an opportunity to avoid the death and did not make use of it. That is not the result of the testimony of the engineer, for he testified that although he observed an object about 40 meters beyond the crossing and close to the track,.he could not make out what it was; that he blew the whistle repeatedly and did not realize that it was a man seated on the end of a cross-tie with his coat over his head until ten meters before reaching him, and that immediately he applied the brakes and stopped the train about fifty meters beyond, but was unable to bring the train to a stop before going that far because it was on a down-grade where the engine is dominated by the train.
In view of the conclusion which we have reached it is unnecessary to consider whether, notwithstanding the specification in the complaint of the cause of negligence attributed to the defendant and not proved, a judgment against it could be based on negligence distinct from that alleged in the complaint.
For the foregoing reasons the judgment appealed from must be affirmed.
Mr. Chief Justice Del Toro concurred in the judgment.