ON MOTION FOR REHEARING. Appellant in its motion for rehearing charged that in our opinion we incorporated facts cited in opinions in other cases and considered such facts as evidence against appellant in this case. If that charge were true appellant would have just grounds for complaint. Such is not the case. Respondent's witness, Kaveney, had had thirty years' experience as an engineer. He testified that if the engineer operating the train had applied the emergency brake at the time the service brake was applied the truck in which deceased was riding would have cleared the track in safety. He also testified that the use of an emergency brake under the circumstances would not have been dangerous. Kaveney's evidence in conjunction with the evidence of the engineer operating the train made a submissible case of negligence. Appellant in its brief, however, made the following assertion with reference to the evidence of Kaveney:
"In the case at bar the respondent relies upon the testimony of Jeremiah Kaveney to present a question of fact as to defendant's negligence.
"Kaveney, it will be noted, never in his life operated an engine like the one involved in this case. In fact, he didn't know until informed that he was holding a photograph of it upside down. He didn't attempt to say that air brakes on all trains were uniform in their operation. His testimony is but the rankest conclusion as to what might have been done, and in addition to that, presents not only a practical but physical impossibility."
In its brief appellant urged this court to declare as a matter of law that the evidence of Kaveney should be disregarded because it presented a physical impossibility. It was in answer to that contention that we cited cases where engineers, who had operated trains figuring in collision cases, had testified that they applied the emergency brake on passenger trains under similar circumstances without endangering the passengers. That was the only purpose of citing those cases. We adhere to our original opinion. The evidence without doubt justified a finding that the engineer was negligent, also that we were not authorized to ignore the evidence of Kaveney.
A more serious charge in the motion for rehearing is, that this court misstated the facts and that absent such misstatements the evidence showed the deceased would have been guilty of contributory negligence as a matter of law. We grant that the evidence presented a close question on this point. The writer has reread the entire record in considering the motion for rehearing. We will consider the charges of misstating the facts in the order as made in the motion. Appellant states: *Page 632
"a. The opinion recites, `A freight train going northeast was due at the crossing at 7:20 a.m.' There is no such evidence in the record."
Appellant is correct. There is no such evidence. The record did show that a freight train was due at the watch-tower at Alhambra at 7:20 A.M., a distance of about two miles to the northeast. The train which struck the truck in question traveled that distance in less than three minutes. The misstatement in the opinion was not serious enough to be a material variance. The next charge is:
"b. The opinion recites: `He (Wolf) was acquainted with the regular train schedule.' There is not one scintilla of evidence in the record that the deceased ever heard of a train schedule."
The record does not contain any direct evidence to support that statement, but such fact may be inferred from the evidence. Note that appellant in its brief stated as follows:
"The undisputed testimony shows that the deceased, Arthur H. Wolf, had lived his whole life in the neighborhood of the crossing, and had, for several months immediately preceding his death, passed over the crossing at least once each day, and was thoroughly familiar with the existing surroundings and conditions."
It might be argued that the deceased was acquainted with all the facts and circumstances except the train schedule. But note that appellant introduced evidence tending to prove that the train which struck the truck was frequently late. The collision occurred on December 9. Evidence of the time when the train passed through on previous days was offered by appellant which showed it was frequently late. Appellant also introduced evidence showing that the freight train due to go northeast about the time of the collision was frequently late, at times as much as five hours. This evidence was worthless if the deceased had never heard of a train schedule. We are justified in asserting that the evidence was offered for the sole purpose of showing that the deceased not only knew the regular train schedule, but also had knowledge of the fact that the trains were frequently late, and therefore he could not have placed any reliance on the regular schedule. In view of that evidence and appellant's assertion that the deceased "was thoroughly familiar with the existing surroundings and conditions" we may assert that appellant assumed the deceased was acquainted with the train schedule. Again, appellant states in its motion:
"c. The opinion recites: `. . . deceased, if looking in the direction of the train, would have been looking toward the sun through hedge and brush covered with frost.' Obviously, this is not true, as shown in our suggestions in support."
Appellant in its original brief said:
"Furthermore, the appellant was not required to anticipate or foresee that the sun might be shining in the eyes of the driver of an *Page 633 automobile as he approached the crossing, or that he would not be wearing dark glasses as a protection against the rays of the sun."
Did appellant, when preparing the original brief, have in mind that the sun might have had a bearing on the case? The answer is obvious.
Appellant also found fault with our statement that the hedge extended north from the right-of-way of the railroad for about two hundred and twenty feet. The photographs of appellant showed that the hedge was not as thick at the right-of-way, but there was a hedge. Some of it had been cut a number of feet above the ground and the brush left there. Appellant also complained of the following statement in our opinion:
"`The fact that the engineer saw the truck does not necessarily mean that the driver of the truck could have seen the train.'"
Appellant states that the engineer testified he saw a man in the truck. The engineer did not say at what point he saw the man. He may have seen him after the truck came upon the right-of-way of the railroad. The engineer, however, testified that he saw the truck when the train was over thirteen hundred feet from the crossing. The truck at that time was behind a thick hedge and the evidence justifies the inference that the driver of the truck could not see the train. After a careful review of the case in the light of the points made in the motion for rehearing we are of the opinion that any misstatements of facts in the opinion are insignificant.
Appellant also complained that we ignored Missouri cases cited in its brief. Appellant insisted that the case was controlled by the Illinois law. We, therefore, confined our research to a great extent in cases from that State. It was also charged that we overlooked three Illinois cases cited by appellant which presented facts exactly parallel to those in the case at bar. A reading of those cases will disclose that there is some similarity in the facts, but in none of the cases are all the facts and circumstances present that were present in this case. The cases cited are: Sunnes v. Ill. Cent. Ry. Co.,201 Ill. App. 378 (erroneously cited by appellant as 291 Ill. App.); Cline v. C., M. St. P. Ry. Co., 198 Ill. App. 163; Ridgway, Admr., v. Ill. Cent. Ry. Co., 24 N.E.2d 759. In the latter case the court in the course of the opinion said:
"Many cases have been cited by plaintiff in which courts have refused to find contributory negligence as a matter of law. Each case presenting the question of contributory negligence must be judged on the basis of its own peculiar facts."
In our opinion we referred to the fact that both parties in the truck lost their lives and they could not speak, but that the natural instinct of man is to preserve life and avoid injury. Appellant asserts that the presumption of due care to be drawn from the natural instinct of self-preservation can only be applied in death cases where there are no eyewitnesses to the accident. The case before us did not *Page 634 rest on any such presumption. There was sufficient evidence to justify a submission of the question to a jury without resorting to any such presumption. However, the instinct of self-preservation in man is present in cases of accidents observed by eyewitnesses in the same degree as in those not so witnessed. The law, however, invokes the presumption out of the necessity of the situation when there are no eyewitnesses. [Goodman v. Chicago E.I. Ry. Co., 248 Ill. App. 128, l.c. 134.] In the case cited in our opinion, C. E.I. Ry. Co. v. Beaver,199 Ill. 34, a young man lost his life in a collision at a crossing. The deceased was riding in a buggy drawn by a horse. Both the engineer and the fireman of the train saw the horse when only a few feet from the track. Two eyewitnesses to the accident, yet, the Supreme Court of Illinois in passing on the question of whether the deceased was guilty of contributory negligence as a matter of law said:
"The natural instinct prompting to the preservation of life and the avoidance of injury, and consequent suffering and pain, may also enter into the consideration of the jury in determining the question."
A general discussion, annotated with citations of numerous cases from various states on this subject, will be found in 22 C.J. 94, sec. 35; 45 C.J. 1155, secs. 744-748. After a careful consideration of all the points in the motion for rehearing and a reconsideration of the case as a whole we are constrained to adhere to the conclusion reached in our original opinion.
The motion for rehearing is overruled.