PHILIPS, District Judge,
after stating the facts as above, delivered the opinion of the court.
In the light of the foregoing facts let us examine the acts of negligence imputed by the petition to the railroad company: (1) In failing to ring the bell or to give other warning to people about the crossing of the approach of the car. There was not only an entire [403]*403absence of evidence to sustain this allegation, but the evidence was uncontradicted that the bell was ringing. (2) In leaving said flat car standing within the limits of said Fifth street and so close to the usual traveled way of said street that when the engine was coupled onto the car, it was pushed over said traveled way without time or opportunity for persons using said traveled way to escape injury therefrom. There is no evidence in the record to support this charge. On the contrary, the evidence is clear that the end of the flat car, toward the street crossing, stood 15 or 20 feet from the south side of the street when coupled on to the engine. The “bump” of the impact in coupling the engine on the car was heard by the switchman, Funda, 100 feet away. The car did not move after this coupling until McGinn mounted to the top of the car with a lighted lantern and gave the signal to the engineer, and when it did move it was only at the pace of an ordinary walk, thus affording ample time and opportunity for any pedestrian approaching the crossing to observe the movement and avoid collision. (3) In running said car at an excessively high and dangerous speed over said crossing under the circumstances, it beiiig after dark and no flagman being maintained at said crossing, said car being pushed ahead of said engine; in failing to have a flagman at said crossing to give warning of the approach of said car; and in failing to have any man or lantern upon the forward end of said flat car to warn persons using said street crossing of the approach of said car.
These allegations will be considered together, as they involve the same principles of law. The trial court, from its charge to the jury, seems to have entertained the view of plaintiff’s counsel, that the failure of the defendant at the time of the accident to have a watchman stationed at the crossing, and to have a man with a lighted lantern “upon the forward end of the car,” might be regarded as negligence per se. This is a misconception not unusual both of the office of such precautions and the reason for such rule or requirements. Hence, its arbitrary application, despite the. facts of the particular case demonstrating its inapplicability. Whenever the reason for a rule does not apply to the particular instance it ceases to exist. If a city ordinance for instance requires the ringing of a bell or sounding of a whistle on the engine approaching a crossing where a person is injured, the omission to observe the ordinance in this respect is wholly immaterial, if as a matter of fact the party injured had notice, of the approach of the engine; for the reason that the only purpose of such warning is to give notice of the approach of the car. Denver City Tramway Company v. Norton (C. C. A.) 141 Fed. 600, 607, loc. cit. So in respect of the duty to keep a flagman at such crossing, the purpose of which is to give warning to persons attempting to effect a crossing of the approach of cars. If the person in fact is aware of the approach, or there, are other facts existing at the time and place which are equivalent to the presence of such watchman, liis absence is wholly immaterial. Likewise in respect of a requirement that a light should be maintained at such cross[404]*404ing; yet, if in fact there are present other lights of equal efficiency the absence of the particular light is of no consequence.
The only end to be subserved by the presence of a person at the forward end of the car is that he might observe the approach of a person at the crossing, and, by giving warning, possibly avoid a collision. But under the plaintiff’s contention that the night was ■so dark that the deceased himself could not see the flat car, the switchman, if at the forward end thereof, would not have seen him; and, therefore, his presence or his absence under such conditions was quite immaterial. The presence of a lantern under such circumstances would alone have afforded the deceased any protection. If so,,it would have been because of seeing the light he might have been warned thereby of danger. There being a lantern in McGinn’s hand near the middle of the car, and other lights showing the presence of the car just as effectually as if McGinn had stood a few feet further forward, it met the whole requirement of any rule, express ■or implied, touching the due care of the law in this respect imposed upon the railroad company. Even if McGinn had been on the forward end of the car, under the deceased’s statement that he did not see the flat car because the headlight of the engine blinded him, it likewise would have eclipsed by its glare the figure of McGinn had he been on the forward end of the flat car.
In its charge to the jury the court told them, in effect, that it was ■ for them to determine from all the facts in evidence, whether the defendant was guilty of negligence in its failure to have some one there as flagman for the purpose of warning pedestrians that the train was approaching. This affords an apt illustration of that conservatism in charging’ juries of indulging in generalities which amount practically to mere abstractions, of little 'aid to the jury in discerning the application of the law to the particular facts of the case. The jury is thus left on the sea of conjecture to proceed without chart or compass to guide. At most this crossing was but little' used at the hour in question, and then mainly by railroad employes familiar with the situation and the probability at any time of switching cars over this crossing. Most certainly, unless the absence of such flagman in some degree contributed to the injury, the fact was not a factor in the case; and the court should have so said. Suppose there had been a flagman at the. crossing, what fact is there in evidence from which any jury should be allowed to infer that the life of Clarkson would have been saved? The place where such flagman would have been Eunda was about with his lantern alight, in plain view of Clarkson, if then approaching the crossing. To á person of his knowledge of the switching habitually conducted there, and of the fact that no flagman was kept at the place, notice was given that a switching movement at that crossing was in process of execution, as much so as if a flagman had told him in so many words.
The next charge in the petition, and the one upon which most stress is placed by the plaintiff below, is as follows: In pushing said [405]*405car ahead, being in such position that the same could not be seen by said Clarkson, it being after 'dark. The manner of pushing the flat car over the crossing, the evidence shows, was in the usual way. Without contradiction the evidence is that when the switch engine was being employed at that place and time, it was for pushing cither box or flat cars across that street. As a railroad man of long experience and observation, and his habitually passing the place, the deceased is presumed to have been familiar with the habit of such switching. When he approached the crossing, if he came from the north, as is contended, the headlight of the engine was ablaze, radiating wider and wider as the distance increased from the reflector.
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PHILIPS, District Judge,
after stating the facts as above, delivered the opinion of the court.
In the light of the foregoing facts let us examine the acts of negligence imputed by the petition to the railroad company: (1) In failing to ring the bell or to give other warning to people about the crossing of the approach of the car. There was not only an entire [403]*403absence of evidence to sustain this allegation, but the evidence was uncontradicted that the bell was ringing. (2) In leaving said flat car standing within the limits of said Fifth street and so close to the usual traveled way of said street that when the engine was coupled onto the car, it was pushed over said traveled way without time or opportunity for persons using said traveled way to escape injury therefrom. There is no evidence in the record to support this charge. On the contrary, the evidence is clear that the end of the flat car, toward the street crossing, stood 15 or 20 feet from the south side of the street when coupled on to the engine. The “bump” of the impact in coupling the engine on the car was heard by the switchman, Funda, 100 feet away. The car did not move after this coupling until McGinn mounted to the top of the car with a lighted lantern and gave the signal to the engineer, and when it did move it was only at the pace of an ordinary walk, thus affording ample time and opportunity for any pedestrian approaching the crossing to observe the movement and avoid collision. (3) In running said car at an excessively high and dangerous speed over said crossing under the circumstances, it beiiig after dark and no flagman being maintained at said crossing, said car being pushed ahead of said engine; in failing to have a flagman at said crossing to give warning of the approach of said car; and in failing to have any man or lantern upon the forward end of said flat car to warn persons using said street crossing of the approach of said car.
These allegations will be considered together, as they involve the same principles of law. The trial court, from its charge to the jury, seems to have entertained the view of plaintiff’s counsel, that the failure of the defendant at the time of the accident to have a watchman stationed at the crossing, and to have a man with a lighted lantern “upon the forward end of the car,” might be regarded as negligence per se. This is a misconception not unusual both of the office of such precautions and the reason for such rule or requirements. Hence, its arbitrary application, despite the. facts of the particular case demonstrating its inapplicability. Whenever the reason for a rule does not apply to the particular instance it ceases to exist. If a city ordinance for instance requires the ringing of a bell or sounding of a whistle on the engine approaching a crossing where a person is injured, the omission to observe the ordinance in this respect is wholly immaterial, if as a matter of fact the party injured had notice, of the approach of the engine; for the reason that the only purpose of such warning is to give notice of the approach of the car. Denver City Tramway Company v. Norton (C. C. A.) 141 Fed. 600, 607, loc. cit. So in respect of the duty to keep a flagman at such crossing, the purpose of which is to give warning to persons attempting to effect a crossing of the approach of cars. If the person in fact is aware of the approach, or there, are other facts existing at the time and place which are equivalent to the presence of such watchman, liis absence is wholly immaterial. Likewise in respect of a requirement that a light should be maintained at such cross[404]*404ing; yet, if in fact there are present other lights of equal efficiency the absence of the particular light is of no consequence.
The only end to be subserved by the presence of a person at the forward end of the car is that he might observe the approach of a person at the crossing, and, by giving warning, possibly avoid a collision. But under the plaintiff’s contention that the night was ■so dark that the deceased himself could not see the flat car, the switchman, if at the forward end thereof, would not have seen him; and, therefore, his presence or his absence under such conditions was quite immaterial. The presence of a lantern under such circumstances would alone have afforded the deceased any protection. If so,,it would have been because of seeing the light he might have been warned thereby of danger. There being a lantern in McGinn’s hand near the middle of the car, and other lights showing the presence of the car just as effectually as if McGinn had stood a few feet further forward, it met the whole requirement of any rule, express ■or implied, touching the due care of the law in this respect imposed upon the railroad company. Even if McGinn had been on the forward end of the car, under the deceased’s statement that he did not see the flat car because the headlight of the engine blinded him, it likewise would have eclipsed by its glare the figure of McGinn had he been on the forward end of the flat car.
In its charge to the jury the court told them, in effect, that it was ■ for them to determine from all the facts in evidence, whether the defendant was guilty of negligence in its failure to have some one there as flagman for the purpose of warning pedestrians that the train was approaching. This affords an apt illustration of that conservatism in charging’ juries of indulging in generalities which amount practically to mere abstractions, of little 'aid to the jury in discerning the application of the law to the particular facts of the case. The jury is thus left on the sea of conjecture to proceed without chart or compass to guide. At most this crossing was but little' used at the hour in question, and then mainly by railroad employes familiar with the situation and the probability at any time of switching cars over this crossing. Most certainly, unless the absence of such flagman in some degree contributed to the injury, the fact was not a factor in the case; and the court should have so said. Suppose there had been a flagman at the. crossing, what fact is there in evidence from which any jury should be allowed to infer that the life of Clarkson would have been saved? The place where such flagman would have been Eunda was about with his lantern alight, in plain view of Clarkson, if then approaching the crossing. To á person of his knowledge of the switching habitually conducted there, and of the fact that no flagman was kept at the place, notice was given that a switching movement at that crossing was in process of execution, as much so as if a flagman had told him in so many words.
The next charge in the petition, and the one upon which most stress is placed by the plaintiff below, is as follows: In pushing said [405]*405car ahead, being in such position that the same could not be seen by said Clarkson, it being after 'dark. The manner of pushing the flat car over the crossing, the evidence shows, was in the usual way. Without contradiction the evidence is that when the switch engine was being employed at that place and time, it was for pushing cither box or flat cars across that street. As a railroad man of long experience and observation, and his habitually passing the place, the deceased is presumed to have been familiar with the habit of such switching. When he approached the crossing, if he came from the north, as is contended, the headlight of the engine was ablaze, radiating wider and wider as the distance increased from the reflector. While the presumption arising from the instinct of self-preservation is to be indulged that the deceased, if approaching the crossing at or about the time of the movement of the car, exercised due care, yet, like any other presumption this one disappears when the truth appears. The light from the engine the law presumes Clarkson saw, for it required him to look, as he was conscious of approaching a place of danger. If he looked he could but sec. If he did not sec the light he was not looking. In either event the physical fact concludes him. Hayden v. M., K. & T. Ry., 124 Mo. 573, 28 S. W. 74. When a party .advances a mere theory the court should see to it, as said by Judge Sherwood in State v. Dettmer, 124 Mo. 435, 27 S. W. 1117, that it “must not go counter to the physical facts in the case; for, if it does, neither courts nor juries are required to stultify themselves by disbelieving" the immutable physical facts in the case.”
Notwithstanding some minor differences in the version given by the witnesses as to the statements made by the deceased immediately after the accident, they arc in practical accord that he admitted that he saw the headlight, and that lie did not know what he was doing or thinking about, as he did not see the flat car. And there is little ground for doubting that he also said it was his fault. Touching this matter the court, in its charge to the jury, said:
“If Clarkson did make that statement, that is not conclusive upon him, nor is it conclusive upon the plaintiff in this action, because undoubtedly Clarkson was suffering pain at the time, and great mental suffering, and you should take that into consideration in determining its weight. Even if he made it, it is not conclusive that the fa nit was his, because we all know that a person in that situation is not to be held strictly to all that he may say under those circumstances.”
This, it seems to us, was more than favorable to the plaintiff below. Its tendency was to minimize the effect of the admission.
The exclamations of persons in moments of sudden disaster arc impressive. They are unpremeditated and ought to be presumed free from pretense. They reflect the truth of nature, first impulse. We fail to discover any incoherence, or external evidence of unconsciousness, to justify the rejection of the statements of Clarkson made within a few seconds or a minute after the accident. Of course his admission that his misfortune was his own fault would not necessarily conclude him, as his deduction might be incorrect; yet it was, if made, his own conclusion drawn from facts especially [406]*406within his knowledge. Like any other alleged admission, it was competent evidence against him or anyone claiming under him. His whole statement made at the time should be received, to be judged of by the triers of the fact. The charge of the court in this respect was hardly consistent with the fact that counsel for plaintiff below put in evidence the affidavit as to what McGinn, if present, would testify, which contained the statement that “said Clarkson said in my presence and hearing that he saw the headlight of the engine and did not see the car, and thought lie had time to get across.” And Funda, the other witness introduced on behalf of the plaintiff, testified that Clarkson said:
“Boys, it is all my fault. I Rave been railroading for a good many years. I saw that headlight, but I did not see the car. I thought I had time to get across, and I got caught before I got over. I did not notice the first car.”
The plaintiff below having thus brought into the case the statement of the deceased without objection, she made it an issue of fact, and her counsel relies upon it in part for maintaining the verdict.
Flaying by its charge, practically destroyed the effect of deceased’s statement beyond question the court should have granted the request of the defendant for a directed verdict. For eliminating the statement of the deceased, what have we in this record to support the verdict ? The case would stand thus: Clarkson was found injured under the defendant’s car; no one saw him approach, and no one witnessed the injury. While it is to be presumed from the nature of his injury that it was inflicted by the defendant’s car or cars, whether he was lying down on the track or whether he had stumbled and fallen between the rails in crossing, at best would be matter of conjecture. Would such a state of facts, without more, sustain a verdict for damages against the railroad company? In Cincinnati, etc., Railway Company v. South Fork R. Co. (C. C. A.) 139 Fed. 528, 1 L. R. A. (N. S.) 533, Judge Lurton. in a forceful opinion, maintains that the maxim of res ipsa loquitur does not so apply even to the relation of carrier and passenger, that a mere injury to a passenger in transit is sufficient without more to warrant a finding that the injury resulted from the negligence of the railroad company. Clarkson was neither a passenger nor an employé. No contractual relation existed between him and the defendant railroad company. The company owed him no duty other than a public one. When, therefore, he or his representative asks to hold the railroad company for damages resulting from the fault of the company proof must be offered to show how he g'ot under the car and how it was the fault of the railroad company.
The principal reliance to support the verdict is upon the case of Texas & Pac. Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186. While there are lines of parallelism between that and the case at bar, they soon diverge and draw apart. We only know what the facts of the Gentry Case were from statements found in the opinion of the court, to the effect that while there was conflict in if there was sufficient evidence to render it necessary to submit the case to the jury; that evidence tended to show the following state of [407]*407facts: While (lenity was passing ewer the defendant’s yards he was ran down and killed hy a Hat. car coupled in front of a locomotive used hy the defendant for switching purposes; that the defendant failed to place any headlight, lantern, or other lights of any kind, or any other signal of danger, or any person to watch for employes, on said flat car to give warning of its character, or to sound the whistle or ring the hell of the locomotive as it approached the crossing; that the headlight on the locomotive was so arranged that its rays passed entirely over and beyond the flat car in front of the locomotive; and that tl ' defendant failed to have any lantern or light at the point in-or about its yards or the crossing; and that the engine used by the company for switching purposes on the occasion was an •ordinary heavy road engine with a pilot in front, and was not suitable. but unfit, for such purpose; and that the defendant did not have knowledge of such use of an ordinary engine, with a fiat car coupled in front of it for switching purposes; that he was unable to sec the flat car on account of the darkness of the night, and by being blinded by the headlight on the engine, and had not heard the whistle or bell of the locomotive, not knowing anything of the use and danger of the locomotive and flat car as an appliance for switching purposes. From which it appears that the railroad company in moving the flat car did so with a road engine, with the headlight so far above the flat car in front that its rays did not disclose the presence of the flat car; that there was no one on the flat car or about there with a lighted lantern, nor were there other lights about the crossing, and that the employment of such a road engine for such purpose was so unusual as to mislead the injured party. As everyone knows, whoever observed such engines, the headlight in a road engine is considerably higher from the ground than that of a switch engine; and, therefore, the light did not fall upon the flat car at all. But. in the, case at bar, the evidence does not admit of dispute that the engine employed was the usual switch engine. That the headlight: fell'on the flat car so as to plainly disclose four-fifths---about 24 feet— of the fonvard part of the car to full view. That there was on top of the flat car, near or a little fonvard of the middle, a brakeman with a lighted lantern in his hand, vdio stood in the full glare of the headlight, who was plainly seen in that position by Funda, the plaintiff’s witness, and as demonstrated by experiments made by a number of uncbnlradicted witnesses, both the fiat car and the presence of McGinn on top of it were plainly visible at least 50 feet from the car to anyone approaching the. crossing. There was also an an: light in the adjoining block, which threw sufficient light on this crossing to disclose the presence of an object like a flat car thereon. In addition to this. Funda was passing to and fro about this crossing with a lighted lantern in his hand. It would seem to be a physical impossibility for Clarkson not to have discovered the presence of the flat car unless lie was positively heedless, or his mind was occupied about something else, or more likely because he had grown careless from familiarity with the situation. Unless it is to be assumed that [408]*408lie supposed McGinn was in some way suspended in midair, four or five feet above the ground, he must have known he was standing on something moving in front of the engine. And when this is considered in connection with his knowledge of the habit of the defendant in switching flat cars across that street he was bound to assume that such movement was in process of execution — as the bell was ringing indicating movement. The point where he lay when found— several feet beyond the plank way in the street — corroborates his statement that he thought he could get around ahead of the engine; and we entertain little doubt that in that way he lost his life. Thus-furnishing another illustration of the fact that rather than await, in perfect safety, the passing of a car at such crossing, to save a few seconds of time some people will run a race with the car as to which shall first cross,and usually lose on the hazard.
In any permissible view of the facts and the law of this case, this verdict cannot stand except upon the license of a mere conjecture, as needful to be restrained as a disguised confiscation. The court should have granted the request of the defendant for a directed verdict.
It results that the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to grant a new trial.