The propositions of appellant in effect present the three points of view that the evidence speaks unequivocally (1) of the lack of any negligence on the part of appellant proximately causing the death of D. R. Ferguson; (2) of the negligence of the deceased at the time of injury, which wholly or partly resulted in his death; and (3) of assumed risk by the deceased of injury from the regular train running on the main line on schedule time, the deceased being familiar with the time the train was due, and he having no duties to perform at the time on the main line track. The fact can be conceded that the deceased was struck and killed by the passenger locomotive as it was going through the yard to the depot.
The inference from the circumstances is quite clear that the train killed him. Yet it is apparent from the evidence that an occasion of blame for the death cannot be predicated upon running the train at a high rate of speed or in not diminishing the light of the headlight while going through the yard. Neither ground of such alleged negligence distinctly pleaded and relied upon, was the efficient cause of the injury and death, in the sense that the death would not have occurred without such negligence. It is clear that the deceased was not on the main line track at the time he was struck. The physical injuries on his body disclose that no part of his body was cut off by the wheels, which necessarily would have resulted had he been in the direct pathway of the locomotive. And it is equally as clear, as indicated by the injuries on his body and the blood spots on the steps of the pilot, that the deceased was sitting on or squatting near the outer ends of the ties from the east rail of the main line track, and that he was not standing on his feet erect. He was performing no duties on the main line track. It is plain that the deceased was facing east or northeast. The train was coming from the south. Under such circumstances it would be an unwarranted assumption that the deceased was blinded by the headlight and so confused as to his whereabouts as to step in the direction of the train without knowing it, or that the speed of the train, of itself and by itself, wholly or partially caused the injury. It is true that the locomotive was equipped with the regulation headlight, in compliance with the order of the Interstate Commerce Commission, and that the light of the headlight was not diminished in going through the yard. Under the terms of the said regulation it is not per se a violation of such order to fail to dim the headlight, but it becomes negligence vel non according to the circumstances of each case. And, assuming it to become an act of negligence in this case to fail to dim the light, such negligence was not the proximate cause, under the evidence and the physical circumstances, of the injury and death. We think it conclusively so appears.
There is not, however, an entire absence *Page 313 of evidence of negligent failure to ring the bell as the train was going through the yard. At least the doubtful condition of the evidence requires the question, in legal contemplation, to be left to the jury, and not determined as a matter of law by this court. It was the practice to ring the bell in going through the yards, and the deceased had the right to rely upon the practice; and there was failure to ring the bell, as found by the jury, in this instance. Such negligence could be regarded as a proximate cause of the injury and death.
We next inquire as to what support there is for the finding as to the deceased's own care or caution under all the circumstances. The last time he was seen alive was at 6:45 o'clock p. m. At that time he was standing at the north end of the string of cars then assembled on the passing track, with his hand on the north end of the last car in the string. His lantern was sitting on the ground near the end of this box car, and he was facing north. This was 20 minutes before the passenger train arrived. As seems evident, during these 20 minutes he was not performing any duty there, although expecting more cars to be ultimately brought up to go in the train being made up. He was not engaged in inspecting the cars and in coupling them, as that work had been done as to the string of cars assembled. He was waiting for more cars to be brought there. The freight crew were still weighing cars at the scales. And the manner in which and the fact that he was hit by the locomotive indicates that he did not remain standing near the end of the box car, but that he moved back nearer to the main line track, and there sat down on or squatted near the ends of the ties. His injuries were entirely on the back of the head and the rear of the right side near the armpit, and not below the sixth rib. Tile blood on the locomotive was "on the pilot, on the ribs, and right step, and the pilot beam." The deceased was 5 feet and 9 inches tall, and there was no injury to his body below the sixth rib. The step on the pilot which reached to the height to do so, evidently cut the deep gash in the rear of his right side near the armpit, and the pilot beam evidently struck and mashed the skull on the rear of the right side. That the deceased knew, as did the other yardmen, that the passenger train was likely to pass at 7:05 o'clock, and that it was about that hour when he assumed that position near the track, is not open to question. It was not a proper place to he. It is shown that the roar of the train was great. His children at the home, not more than 200 yards distant from him, heard the roar for half a mile away. Others heard it. It was affirmatively shown that it was a quiet Sunday night, with no noise in the yards. It does not appear that the wind was blowing. It was not shown that deceased's hearing was not good, so that he could not hear the roar of the approaching train. The headlight, too, was casting a bright light ahead 700 or 800 feet. He had ample opportunity to acquaint himself with the peril incident to the situation which led to his being injured. Then why did he remain so near the track after he could hear the train and see the light in ample time to step away? The law devolves this duty on the deceased, and there is really nothing to explain such conduct or excuse the failure to use due care to leave the position of peril incident to the situation near the main line. He could not have been in a better position to hear the approaching train. The same is true with reference to his seeing the light.
We must assume, in the absence of evidence to the contrary, that deceased was possessed of normal hearing and sight. If he had exercised either faculty, as it was his duty to do, he could easily have heard or seen that train in time to get away from such close proximity to it. If he did not hear or see it, it was solely because he was not in the least attentive. It is pure conjecture that the deceased thought he was in safe distance from the approaching train. We think the facts of the case clearly overcome any presumption arising from the rule as to instinct of self-preservation. We are not disposed to deny to the deceased the benefit of that rule, so often announced, that the jury may as sume from the instinct of self-preservation that a person is diligent to escape injury. But in each of the cases the injury happened when the person was intently engaged at the moment in the line of employment; and, in some, if not all of them, his conduct is traced so closely to the accident that from it, aided by a presumption that arises from a natural disposition to avoid injury, the fact of diligence could well be founded. This is not the situation of this case, and the circumstances are not as favorable as that for the deceased. The deceased failed to use any diligence to get away from the approaching train, having time to do so; and a judicial finding to the contrary is not warranted Therefore, in determining the result of the case, it is essential to view the conduct of the railway company and of the deceased as a whole, and note the bearing the acts of each had upon the resultant injury. The negligence of the railway company, as could be found by the jury, in failing to ring the bell, as customarily done, was not the sole cause, but a concurring cause of the injury. The negligence of the deceased contributed to his injury. Hence the injury was partly the result of the negligence of the company and of the negligence of the deceased; the legal consequence being, as they each were in fault, the amount of recovery should be diminished, as that is the legal effect of contributory negligence. The present verdict is then excessive, as no deduction of amount was made by the jury. This court cannot direct a remittitur, since the parties to the suit are *Page 314 entitled to a jury finding in that respect. It is incumbent upon this court to remand the cause in such situation.
As to the third proposition, we conclude that assumed risk is not applicable in the circumstances, in the view that the only actionable negligence was the failure to ring the bell as was customarily done. Even if the deceased could be held to have assumed the risk from the operation of the train, on account of his knowledge of the schedule time of its arrival, he cannot be said to have assumed the additional risk caused by failure to follow the customary practice of ringing the bell.
The judgment is reversed, and the cause is remanded for another trial.
On Motion for Rehearing. Both the appellant and the appellee have filed motions for rehearing, which are here considered and disposed of. The appeal was heretofore disposed of on two grounds: First, that there was evidence to support the jury finding of negligence in the particular instance in failing to ring the bell of the passenger engine, as customarily done in approaching the station of Leesville through the railway yards, and that such negligence could be regarded as a proximate cause of the injury and death, since the deceased had the right to rely upon the practice; he being rightfully at the place where he was working. If the witnesses so testifying are believed, there is proof rendering probable the existence of the fact, as found by the jury, that the bell of the engine was not kept ringing through the yards in the particular instance, as customarily done. It is not entirely improbable in the circumstances that such failure of warning was a cause of the deceased being struck by the engine. Therefore the question of actionable negligence vel non in that respect remains in the domain of open fact and not of pure law, after all the evidence has been considered. We have further considered the other contentions of appellant's motion, and conclude that they should be overruled.
The second ground was that the evidence conclusively showed the injury was partly the result of the negligence of the deceased, and as a consequence the jury's finding to the contrary should be set aside because it was contrary to the legal effect of the evidence. This conclusion was based upon the determination made that all the circumstances united in indicating the deceased, several minutes before the train arrived —
"moved back (from the end of the box car) nearer to the main line track and there sat down or squatted near the ends of the ties. * * * The deceased knew, as did the other yardmen, that the passenger train was likely to pass at 7:05 o'clock and that it was about that hour when he assumed that position near the track. * * * It was not a proper place to be. * * * The deceased failed to use any diligence to get away from the approaching train, the glare of the headlight, and the rattle of which he could have seen and heard when it was some distance away."
If that is not a correct determination of the facts, then the ruling made is erroneous; otherwise it is not wrong. Both the appellant and the appellee now challenge the conclusion of fact, and say "there is no evidence from which the jury or the court could reasonably find that deceased was sitting or squatting dangerously near the track." Reference is made to the evidence of the engineer and fireman. The engineer testified:
"In going through that yard, I was keeping a lookout. I did not see Mr. Ferguson or any other man on or near the tracks in going through the yards that night. I did see a lantern — a car repairer's lantern — sitting on the ground between the main line track and the passing track. I did not see Mr. Ferguson or any other man there about that lantern. I can see the ground within a few feet of the end of the pilot."
The fireman testified:
"I was keeping a watch ahead in going through Leesville that night. I did not see any man on the tracks or near the tracks as we were passing through the yards. The headlight was giving a good light, so that I could see along the track through the yard there. I saw a lantern as I went through the yard, between the main line and passing track."
The failure to note the significance of this evidence of the operatives of the engine in the large record is inexcusable, at least on the part of the writer of the opinion. A change of the fact mentioned changes the legal conclusion reached, to the extent that contributory negligence appeared as a matter of pure law. If the engineer and fireman are to be believed, and no reason appears why they should not be, then the deceased, for an appreciable period of time prior to his injury, was not knowingly standing and remaining in a position to be struck by the oncoming train, having time to avoid being struck by it. Hence it is thought, after all the substantive evidence had been considered, that the ultimate question of negligence vel non on the part of the deceased contributing to his injury remains in the domain of open fact for decision by the jury. There is proof rendering probable the existence of the fact, as was found by the jury, that the deceased did not "carelessly or while intoxicated place himself in such position upon or near the main line track that he was struck and killed by an in-coming passenger train." We have accepted the fact that the on-coming passenger engine struck and killed the deceased. The deceased was rightfully between the two tracks, in the duties required of him at the time. He was between the two tracks, near the string of box cars he had inspected, *Page 315 immediately before the passenger train came along, in waiting for the switch engine to come back with more cars to be inspected. And the evidence of the engineer and fireman can be accepted as meaning that the deceased was not, prior to the very moment of being struck, in a position of such nearness to the main line track as to be struck by the engine. It is not difficult to conceive that the deceased must have stepped in the path of the engine at some moment of its passing, with the result of being struck and killed by the pilot beam or pilot of the engine, although he was not seen prior to that moment by the operatives of the engine. The inference is allowable that the deceased must necessarily have stepped quickly in the way of the engine for some cause, coming from somewhere very near the engine. The engine was running at the time "20 or 22 miles an hour." Therefore, given the two premises, that the passenger engine struck and killed the deceased, and that he was not in or near the path of the engine before the moment he was struck by it, it does not follow in a way too certain for doubting that the act and conduct of the deceased were lacking in due care to avert his injury. There is an absence of something else which would weigh mightily before negligence as a matter of pure law could be imputed to him, which is the fact of whether or not deceased was aware of the approaching train, and in time to have avoided being struck by the engine. In view of the rattling noise of the train and the glare of the headlight on the engine, in connection with the fact that the deceased knew the train was about due, it is difficult to impute to him utter ignorance of the approaching train. Yet it is not wholly improbable that he was in reality unaware of the nearness of the engine to him. The conduct and act of the deceased are not necessarily inconsistent with due care on his part to avert the injury. It can be necessarily assumed from the instinct of self-preservation that he did not knowingly and deliberately place himself in the way of the engine to be struck. The jury expressly found that the deceased was not drunk. And the circumstances are not entirely unfavorable to the presumption that the deceased had mistakenly stepped in the path of the engine, due to deep confusion from some cause. As the evidence bearing upon the conduct of the deceased just prior to his being struck by the engine does not conclusively indicate that the deceased was unmindful of the danger of his surroundings, the entire matter was for the jury, as in their province to say, under our system of law.
We have considered appellant's other assignments of error, and think they should be overruled.
We grant the motion for rehearing, now set aside the former judgment of reversal, and here now enter a judgment of affirmance.