McLain, C.
This is an appeal from a judgment rendered in the circuit court of Lauderdale county against the Alabama Great Southern Railroad Company for the killing of Zaehariah Hunnicutt, Jr., son of the plaintiff, by a passenger train of defendant. The record shows that Zaehariah Hunnicutt, Jr., on the 24th day of July, 1908, was killed by a passenger train of defendant at Kewanee, Mississippi. , This was known as the fast train, and it left Meridian for Birmingham at 2:02 a. m., and passed Kewanee at 2:25 a. m. Kewanee was a small unincorporated village, and was not a regular stop, and this train in question was not scheduled to stop there. Hunnicutt was a young man, and was telegraph operator at this1 little station. The railroad track was straight at this point for a distance of seven hundred yards west and three-fourths of a mile east. The depot was on the south side of the track, and had a platform fronting to the railroad for the entire length of the building. It was constructed by sills or timbers, eight'by ten, being placed in line ten feet from the building, and the space between timbers and depot filled up with dirt and gravel. This formed the floor of the platform. The outer edge of the platform was something over three feet from the railroad track.
The engineer states that, as he approached the station on the night in question, his train was running at the rate of forty or forty-five miles an hour, and that he was on the lookout for the light on the signal board [291]*291at the depot (in charge of the deceased) to change from red light to white light, which change would have authorized him to run on without stopping. He states that the railroad track and surroundings at the depot were plainly visible; that he sounded the whistle several dimes, but the light did not change from red to white. It then occurred to him that possibly the agent, Hunnieutt, had what is commonly called in railroad circles an “ order No. 19” to deliver to him or conductor, which order is always delivered without stopping • the train, by putting the order on some kind of a device, and placing that on the end of a pole, which is held out by the agent and taken in by the fireman or conductor reaching out for it. The rules require the agent, in performing this duty, to appear on the outside with a blue light. The engineer stated that when he saw the agent did not appear, nor had not changed the red light to white light on the signal board, that it then became his duty under the rules of the company to stop his train, which he at once did, stopping about one hundred and fifty feet oast of depot. The train was then pushed back to the depot, and the conductor states that, while he was standing on the platform of one of the cars, he discovered the body of a human being lying on the side of the railroad track, almost in front of the door of the depot. The body was lying between the platform and the railroad track; the distance between the edge of the platform and the railroad track being a little over three feet. The body was lying on its face, parallel with the railroad "track, with head lying east. The conductor states that he turned the body over, and discovered that it'was the body of Hunnicutt, the agent, and that he (Hunnicutt) gasped for breath once or twice, and that his body was warm. The front part of his head was crushed in, or, as some of the witnesses put it, “caved in.” His right arm and left leg were broken. Immediately the crew began to investigate how he was killed. The engineer [292]*292testified that lie examined Ms engine thoroughly, and could find no signs indicating’ that the engine struck Mm, and the car was examined its entire length, and the agent, upon the baggage car testified that he found a small spot, on the sill or beam of his car that looked like brains.
The position of the body and the character of the wounds upon same indicated that he was not struck by the engine. The engineer and the fireman both testified that they were on close watch of the track and depot surroundings as they approached the same, and that they did not see Hunnicutt or any one else. They state that they were specially alert and watchful by reason of the failure of the agent to give any signal whatever. It is further in evidence that on Wednesday evening late, preceding the next Thursday night on which this accident occurred, the agent, Hunnicutt, received by express a case of beer containing forty-eight bottles. He took possession of same, and was seen drinking this beer along* through the next day. He treated some of Ms friends. He had a lot of this beer on ice late Thurday evening. While he was seen drinking, no one testified that he was drunk. After his death, forty-seven empty beer bottles-were found. It was shown that he was alive at 11:47 that night, as he reported the passing of a train at that time to the train dispatcher. The crew of that train also testified that they saw a man in the office as they passed. It was further shown that no No. 19 order, or other order, was found on his desk, and the train dispatcher testified that he had not given any such order, or any order of any kind. It was shown that he had no duties to perform on the outside of the depot at the time the accident occurred; that his whole duty at that period of time required his presence in the office. The signal board was operated from his office.
These are the leading facts in the case. From the record, it clearly appears that Hunnicutt was killed by the running of the train of defendant at the time and [293]*293place shown in the evidence. Indeed, this is not denied. This was prima facie proof of negligence, authorizing a recovery by plaintiff. “In all actions against railroad ■companies for damages, done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employes of railroad companies.” Code 1906, § 1985. “To overcome this statutory presumption,, it devolved upon the appellant to exculpate itself by establishing to the satisfaction of the jury such circumstances of excuse as would relieve it from liability. But this statutory presumption cannot be overthrown by conjecture. The ■circumstances of the accident must be clearly shown, and the facts so proved must exonerate the company from blame. If the facts be not proven, and the attendant circumstances of the accident remain doubtful, the company is not relieved from liability, and the presumption •controls.” New Orleans & Northeastern Railroad Company v. Brooks, 85 Miss. 274, 38 South. 41. Such is the burden imposed by the law upon the defendant. It has placed the burden on it to clear up the situation. Has the defendant met this burden or liability imposed by the law? In the outset, we will state that to do this it is not absolutely necessary, as has been intimated or suggested in the record, that an eyewitness should be produced to testify that he saw the accident in any or all of its details; but that fact may be proven by circumstances. In other words, the prima facie presumption ■created by the statute can be overcome by circumstantial evidence; but it should be convincing, full, and complete.
It clearly appears from the record- — indeed, it is not disputed — that the train and its appliances were in good ■order, that the engineer was competent and diligent, and that the train on the occasion in question, was carefully [294]*294handled.
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McLain, C.
This is an appeal from a judgment rendered in the circuit court of Lauderdale county against the Alabama Great Southern Railroad Company for the killing of Zaehariah Hunnicutt, Jr., son of the plaintiff, by a passenger train of defendant. The record shows that Zaehariah Hunnicutt, Jr., on the 24th day of July, 1908, was killed by a passenger train of defendant at Kewanee, Mississippi. , This was known as the fast train, and it left Meridian for Birmingham at 2:02 a. m., and passed Kewanee at 2:25 a. m. Kewanee was a small unincorporated village, and was not a regular stop, and this train in question was not scheduled to stop there. Hunnicutt was a young man, and was telegraph operator at this1 little station. The railroad track was straight at this point for a distance of seven hundred yards west and three-fourths of a mile east. The depot was on the south side of the track, and had a platform fronting to the railroad for the entire length of the building. It was constructed by sills or timbers, eight'by ten, being placed in line ten feet from the building, and the space between timbers and depot filled up with dirt and gravel. This formed the floor of the platform. The outer edge of the platform was something over three feet from the railroad track.
The engineer states that, as he approached the station on the night in question, his train was running at the rate of forty or forty-five miles an hour, and that he was on the lookout for the light on the signal board [291]*291at the depot (in charge of the deceased) to change from red light to white light, which change would have authorized him to run on without stopping. He states that the railroad track and surroundings at the depot were plainly visible; that he sounded the whistle several dimes, but the light did not change from red to white. It then occurred to him that possibly the agent, Hunnieutt, had what is commonly called in railroad circles an “ order No. 19” to deliver to him or conductor, which order is always delivered without stopping • the train, by putting the order on some kind of a device, and placing that on the end of a pole, which is held out by the agent and taken in by the fireman or conductor reaching out for it. The rules require the agent, in performing this duty, to appear on the outside with a blue light. The engineer stated that when he saw the agent did not appear, nor had not changed the red light to white light on the signal board, that it then became his duty under the rules of the company to stop his train, which he at once did, stopping about one hundred and fifty feet oast of depot. The train was then pushed back to the depot, and the conductor states that, while he was standing on the platform of one of the cars, he discovered the body of a human being lying on the side of the railroad track, almost in front of the door of the depot. The body was lying between the platform and the railroad track; the distance between the edge of the platform and the railroad track being a little over three feet. The body was lying on its face, parallel with the railroad "track, with head lying east. The conductor states that he turned the body over, and discovered that it'was the body of Hunnicutt, the agent, and that he (Hunnicutt) gasped for breath once or twice, and that his body was warm. The front part of his head was crushed in, or, as some of the witnesses put it, “caved in.” His right arm and left leg were broken. Immediately the crew began to investigate how he was killed. The engineer [292]*292testified that lie examined Ms engine thoroughly, and could find no signs indicating’ that the engine struck Mm, and the car was examined its entire length, and the agent, upon the baggage car testified that he found a small spot, on the sill or beam of his car that looked like brains.
The position of the body and the character of the wounds upon same indicated that he was not struck by the engine. The engineer and the fireman both testified that they were on close watch of the track and depot surroundings as they approached the same, and that they did not see Hunnicutt or any one else. They state that they were specially alert and watchful by reason of the failure of the agent to give any signal whatever. It is further in evidence that on Wednesday evening late, preceding the next Thursday night on which this accident occurred, the agent, Hunnicutt, received by express a case of beer containing forty-eight bottles. He took possession of same, and was seen drinking this beer along* through the next day. He treated some of Ms friends. He had a lot of this beer on ice late Thurday evening. While he was seen drinking, no one testified that he was drunk. After his death, forty-seven empty beer bottles-were found. It was shown that he was alive at 11:47 that night, as he reported the passing of a train at that time to the train dispatcher. The crew of that train also testified that they saw a man in the office as they passed. It was further shown that no No. 19 order, or other order, was found on his desk, and the train dispatcher testified that he had not given any such order, or any order of any kind. It was shown that he had no duties to perform on the outside of the depot at the time the accident occurred; that his whole duty at that period of time required his presence in the office. The signal board was operated from his office.
These are the leading facts in the case. From the record, it clearly appears that Hunnicutt was killed by the running of the train of defendant at the time and [293]*293place shown in the evidence. Indeed, this is not denied. This was prima facie proof of negligence, authorizing a recovery by plaintiff. “In all actions against railroad ■companies for damages, done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employes of railroad companies.” Code 1906, § 1985. “To overcome this statutory presumption,, it devolved upon the appellant to exculpate itself by establishing to the satisfaction of the jury such circumstances of excuse as would relieve it from liability. But this statutory presumption cannot be overthrown by conjecture. The ■circumstances of the accident must be clearly shown, and the facts so proved must exonerate the company from blame. If the facts be not proven, and the attendant circumstances of the accident remain doubtful, the company is not relieved from liability, and the presumption •controls.” New Orleans & Northeastern Railroad Company v. Brooks, 85 Miss. 274, 38 South. 41. Such is the burden imposed by the law upon the defendant. It has placed the burden on it to clear up the situation. Has the defendant met this burden or liability imposed by the law? In the outset, we will state that to do this it is not absolutely necessary, as has been intimated or suggested in the record, that an eyewitness should be produced to testify that he saw the accident in any or all of its details; but that fact may be proven by circumstances. In other words, the prima facie presumption ■created by the statute can be overcome by circumstantial evidence; but it should be convincing, full, and complete.
It clearly appears from the record- — indeed, it is not disputed — that the train and its appliances were in good ■order, that the engineer was competent and diligent, and that the train on the occasion in question, was carefully [294]*294handled. The engineer states that as he approached the station he did not see the deceased on the track or elsewhere, and that he was on a close watch for the signal board, which was then being operated, or should have been, by the deceased. The fireman also testifies to the same thing. Failing to receive any signal or information from the signal board or in any other way, he brought his train to a stop a short distance beyond the depot east. Then backing his train to the depot, to ascertain the reason or cause of the failure of the agent (deceased) to give the proper signal, the agent was found dead, under conditions and circumstances as hereinbefore described. From the testimony it is clear that he was not killed by the engine, but was struck by some other part of the car, after the engine, tender, and several cars had passed where his body was found.
Taking these physical facts and circumstances in connection with the testimony of the engineer, fireman, and conductor, it shows conclusively that he (deceased) was beyond the sweep or path of the train when the engine and several cars passed. Evidently, to have been struck and killed by a car in the rear of the engine and these several cars, he must have, in the very nature of things, advanced in some way towards the running train. This was negligence on his part, and that, too, whether he was conscious or unconscious, drunk or sober, awake or partly asleep. It occurs to us, after taking into consideration the freedom with which he’ drank beer on that day, and from the indisputable fact that he was absent from his post of duty at this important moment, that the most reasonable theory is that the unfortunate young man was asleep on the edge of the platform or elsewhere when the train first approached, and that the roar, jar, and vibration of the train awoke him, and that he suddenly arose, and in his confused mental condition came in contact with the moving cars and was killed. But it may be said this is merely a conjecture [295]*295or theory. We do not think that the evidence in the case and the physical facts here shown stop at mere conjecture as to how the deceased was injured. They go far beyond that. In our judgment, they clearly show that the injury was not inflicted by any want of ordinary care upon the part of the defendant, but was due solely to the contributory negligence of deceased.
Indeed, the physical facts corroborate the testimony of the engineer and other witnesses so strongly, and we are driven to the conclusion that this deplorable accident was attributable to the want of due care on the part of deceased, and not from negligence on the part of defendant railroad company.
Reversed and remanded.
Per Curiam. For the reasons set forth above by the Commissioner, the judgment is reversed, and the cause remanded.