The whole testimony shows that Garteiser was an employe of Heineman, who was an independent contractor to build fence for the appellant, under a contract made with it before the Southern Pacific Company had come into existence. It is true that Heineman in one part of his testimony swore, that he was a contractor for the Southern Pacific Company, but at the same time stated, that he had been such contractor since 1884. The first connection of the Southern Pacific Company with the road was in 1885. The testimony shows, that the hand-car on which appellee was riding was furnished by appellant. Appellee had no notice of any kind of the approach of the train. Schraeder said: "I saw the train when it crossed the public road going from east to west, in the direction of the bridge. I saw said train of defendant's cars, as stated; they, that is those in charge of the train, did not ring the bell or blow the whistle just before or while crossing said highway. * * * No signals were *Page 465 given." It is insisted that the witness, being near the crossing, might not have heard the signals. To comply with the law, the bell should have been rung continuously until the crossing was passed. Acts 1883, p. 28; Railway v. Duelm, 23 S.W. Rep., 597. Before going on the bridge, the parties on the hand-car stopped and listened carefully to ascertain if any train was approaching, and hearing none, they then went on the bridge. Garteiser, the appellee, had been working in the locality of the accident for about four months. He said: "I know where the railroad crosses a public road, which is about six or seven hundred yards east of the bridge. We built a fence along the right of way from the section house to the bridge; that was about a month before the accident, where I was injured at the bridge. While building fence along there at the point where we stopped, I had heard the whistle of a train at the public crossing east of the bridge. I had heard the whistle from that point a number of times; could hear it distinctly, nearly as if I was right close to it. * * * I am familiar with the surroundings there. * * * I did not hear the sound of the bell or whistle on that morning." This witness swore that the train was running "awful fast." The bridge is about 250 or 300 feet long.
The rules for the trains on the road required that five short blasts of the whistle should be given before entering tunnels and covered bridges, and required special trains to sound the whistle repeatedly in obscure places.
We are sustained in our position that the failure to give the statutory signals at the road crossing was admissible as a circumstance to show negligence, in connection with a person who was close enough to have heard the signals, by the following additional authorities. Davis v. Railway, 34 N.E. Rep., 1070;159 Mass. 532; Iltis v. Railway (Minn.), 41 N.W. Rep., 1040; Hawley v. Railway (Iowa), 29 N.W. Rep., 787.
The motion is overruled.
Overruled.
Writ of error refused.