Paragraph 28 of the petition alleged: "Jim Pease, the agent of defendant in charge of said railroad station, from his vantage point in his office on the west side of said crossing and near the same, saw the train and the plaintiff before she had reached the crossing, and before she could have seen said train due to said obstructions, and he negligently changed the signal board, permitting the train to pass by said station without stopping, thus striking the plaintiff at said crossing." Paragraph 28 (D) alleged: "After said Jim Pease saw the plaintiff and said train approaching said crossing as aforesaid, he owed the plaintiff the duty as a matter of fact not to change the said signal board and permit the said train to pass by same and hit her at said crossing, and his failure as such was negligence." Paragraph 28 (I) alleged: "At the time said agent changed said signal board, the said train was several hundred feet south of the same, and if said stop signal had remained in effect, the said engineer could have slowed said train sufficiently for plaintiff to pass over said crossing before said engine reached same, thus avoiding striking her said automobile."
Whether or not, under other circumstances, a railroad station agent's failure to prevent a crossing accident would charge the railroad with liability, it certainly does not do so in this case. The duty to exercise ordinary care does not require one to be a prophet, and that is what the agent was in this case. When he pulled the signal, the plaintiff was in no danger whatever, and he had a perfect right to rely on the engineer of the train to do his duty, and to rely on the plaintiff to exercise ordinary care for her own safety. In anticipation of a danger which did not exist at the time, the *Page 660 agent hurried to the crossing to prevent an imaginary collision. It so happened that his prophesy was true, and his effort to prevent the collision was in vain. Instead of being charged with negligence, the agent should be commended for extraordinary foresight and humanitarian impulse. Furthermore, even if changing the signal would have been more effective than the course the agent pursued, which I seriously doubt, under the facts, his decision to try to stop an automobile which was running in low gear, rather than a heavy train running at a high rate of speed, cannot be said to be negligence. Of course, whether the railroad might have been liable because of other alleged acts of negligence, is another question which is not for discussion under the exception in this case. I think the court erred in authorizing the jury to find for the plaintiff by reason of any negligence of the station agent. *Page 661