Adams, J.
1. rail-jury to brakeRencé;11 verdiet against evidence. A large number of errors are assigned, but in the view which we have taken of the case it is not necessary, we think, to consider them all. All the persons who had any knowledge of the accident appear to have been fully examined, and we have to say . that, taking the evidence m the most favorable light in which it can be viewed for the plaintiff, we think that it fails to show any negligence on the part of the company or any one of its employes. The decedent, Ford, was employed as a brakeman, and, while so engaged, his foot ivas caught between the main rail and a guard-rail, and he was unable to extricate himself. An engine, with several cars attached, was backing towards him. He made outcries, which were heard by the forward brakeman on the cars, who applied a brake and gave a signal to stop; and the cars were stopped, but not until Ford had been run over. The negligence of the company is alleged to consist of this: “ That the forward brakeman and the engineer were inattentive to their duties, and failed to stop the train on hearing the outcry and signals of distress and danger of the deceased; or, if they failed to hear the outcries and signals of danger and distress, the said failure to hear ivas by reason of inattention to their duties.” The evidence tends to show that the ears moved five or six car-lengths after Ford’s outcries were first heard by by-standers, but the outcries were not heard by the engineer or fireman, or any one having control of the ears, except the forward brakeman, one Weeks, who was standing upon a box freight car, the third from the engine, looking towards Ford, and in the direction in which the cars were moving. At what precise time he heard them docs not appear. If he heard them as soon as they were heard by others, and if the cars moved before they stopped as far as some of the evidence tended to show that they did, there would be some ground for an inference that either Weeks or the fireman or engineer failed to act with reasonable promptness.
[629] The plaintiff claims that there is some direet evidence of inattention on the part of those in control of the train, but the evidence relied upon as such appears to us to be of no significance whatever. On the other hand, the direct evidence shows that they were not inattentive. Weeks stood upon the bos car, in sight of the fireman, for the purpose of giving signals to him. He did give" signals to him, the last one of which was to stop. This signal was observed by the fireman, and communicated to the engineer, who was already standing with one hand on the throttle and the other on the reverse lever.
The direet evidence also shows that no time was lost after the outcries were first heard by Weeks. Weeks testified as follows: “ Heard him [Ford] holler. I set a brake, and gave Mr. Butts [the fireman] signals for him to stop. As soon as I heard him holler I set the brake.” The fireman testified as follows: “We got a signal to stop, and we stopped. * * * At the time I got the signal to stop I was looking out for signals, and was paying attention to nothing else. The engineer was paying attention to what was his business, and that was to move the engine and stop her. * * * Mr. Weeks put on the brakes. I saw him run for the brake. After Weeks gave the signal I don’t think that the train ran more than a ear-length. It was stopped as soon as we could stop it.” The engineer testified as follows: “ Question. I believe you said a train running at that rate of speed would run about a car-length when you undertook to stop. Is that right? Answer. Yes, sir. Q. Did this run more than that distance? A. I don’t think it did. Q. It was stopped as soon as it eould be? A. Yes, sir.” There was no direct evidence to the contrary, and the question is as to whether there was any proven circumstance from which an inference might be drawn that should be regarded as tending to rebut the direct evidence. The plaintiff contends that there was, to-wit, the distance which the cars ran after the outcries were heard by others.
[630] Where a sound is heard by one person, the inference would be that all other persons of good hearing, and having equal opportunity to hecw, heard the sound also; and if they should testify that they did not, we think that it would be a question for the jury to determine whether the direct evidence was not rebutted by the circumstantial. But in the case at bar it was not shown that Weeks had as good an opportunity at first to hear the outcries as the by-standers had. As the cars approached Ford, Weeks, of course, was brought near to him. It is true that, even at first, Weeks was nearer to Ford than two of the by-standers. The latter must, have been about 300 feet distant, and Weeks probably about 150 feet nearer; but in other respects Weeks’ situation was less favorable for hearing the outcries. The twro by-standers most remote were one Dirkson and one Eberhart. They were engaged in holding a team of horses which were frightened by the noise of the engine. They did not at first discover with certainty, from what they heard, that any one was in trouble. Dh'kson testified: “At first there was some doubt between me and Eberhart as to whether there was anything the matter.” lie also testified that there was a high wind, and that he thinks it was such that it might have prevented those in control of the cars from hearing the outcries. The deceased also stated, immediately after the accident, that the wind was blowing; that he thought it was some short time before his cries were heard; and that he believed that the train was stopped as soon as practicable after they were heard. The other by-stander, one Farnsworth, was nearer than Dirk-son and Eberhart, and saw Ford, and appears to have heard his outcries more distinctly. He was distant from Ford only about ten rods, but still a little further, probably, than Weeks was.
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Adams, J.
1. rail-jury to brakeRencé;11 verdiet against evidence. A large number of errors are assigned, but in the view which we have taken of the case it is not necessary, we think, to consider them all. All the persons who had any knowledge of the accident appear to have been fully examined, and we have to say . that, taking the evidence m the most favorable light in which it can be viewed for the plaintiff, we think that it fails to show any negligence on the part of the company or any one of its employes. The decedent, Ford, was employed as a brakeman, and, while so engaged, his foot ivas caught between the main rail and a guard-rail, and he was unable to extricate himself. An engine, with several cars attached, was backing towards him. He made outcries, which were heard by the forward brakeman on the cars, who applied a brake and gave a signal to stop; and the cars were stopped, but not until Ford had been run over. The negligence of the company is alleged to consist of this: “ That the forward brakeman and the engineer were inattentive to their duties, and failed to stop the train on hearing the outcry and signals of distress and danger of the deceased; or, if they failed to hear the outcries and signals of danger and distress, the said failure to hear ivas by reason of inattention to their duties.” The evidence tends to show that the ears moved five or six car-lengths after Ford’s outcries were first heard by by-standers, but the outcries were not heard by the engineer or fireman, or any one having control of the ears, except the forward brakeman, one Weeks, who was standing upon a box freight car, the third from the engine, looking towards Ford, and in the direction in which the cars were moving. At what precise time he heard them docs not appear. If he heard them as soon as they were heard by others, and if the cars moved before they stopped as far as some of the evidence tended to show that they did, there would be some ground for an inference that either Weeks or the fireman or engineer failed to act with reasonable promptness.
[629] The plaintiff claims that there is some direet evidence of inattention on the part of those in control of the train, but the evidence relied upon as such appears to us to be of no significance whatever. On the other hand, the direct evidence shows that they were not inattentive. Weeks stood upon the bos car, in sight of the fireman, for the purpose of giving signals to him. He did give" signals to him, the last one of which was to stop. This signal was observed by the fireman, and communicated to the engineer, who was already standing with one hand on the throttle and the other on the reverse lever.
The direet evidence also shows that no time was lost after the outcries were first heard by Weeks. Weeks testified as follows: “ Heard him [Ford] holler. I set a brake, and gave Mr. Butts [the fireman] signals for him to stop. As soon as I heard him holler I set the brake.” The fireman testified as follows: “We got a signal to stop, and we stopped. * * * At the time I got the signal to stop I was looking out for signals, and was paying attention to nothing else. The engineer was paying attention to what was his business, and that was to move the engine and stop her. * * * Mr. Weeks put on the brakes. I saw him run for the brake. After Weeks gave the signal I don’t think that the train ran more than a ear-length. It was stopped as soon as we could stop it.” The engineer testified as follows: “ Question. I believe you said a train running at that rate of speed would run about a car-length when you undertook to stop. Is that right? Answer. Yes, sir. Q. Did this run more than that distance? A. I don’t think it did. Q. It was stopped as soon as it eould be? A. Yes, sir.” There was no direct evidence to the contrary, and the question is as to whether there was any proven circumstance from which an inference might be drawn that should be regarded as tending to rebut the direct evidence. The plaintiff contends that there was, to-wit, the distance which the cars ran after the outcries were heard by others.
[630] Where a sound is heard by one person, the inference would be that all other persons of good hearing, and having equal opportunity to hecw, heard the sound also; and if they should testify that they did not, we think that it would be a question for the jury to determine whether the direct evidence was not rebutted by the circumstantial. But in the case at bar it was not shown that Weeks had as good an opportunity at first to hear the outcries as the by-standers had. As the cars approached Ford, Weeks, of course, was brought near to him. It is true that, even at first, Weeks was nearer to Ford than two of the by-standers. The latter must, have been about 300 feet distant, and Weeks probably about 150 feet nearer; but in other respects Weeks’ situation was less favorable for hearing the outcries. The twro by-standers most remote were one Dirkson and one Eberhart. They were engaged in holding a team of horses which were frightened by the noise of the engine. They did not at first discover with certainty, from what they heard, that any one was in trouble. Dh'kson testified: “At first there was some doubt between me and Eberhart as to whether there was anything the matter.” lie also testified that there was a high wind, and that he thinks it was such that it might have prevented those in control of the cars from hearing the outcries. The deceased also stated, immediately after the accident, that the wind was blowing; that he thought it was some short time before his cries were heard; and that he believed that the train was stopped as soon as practicable after they were heard. The other by-stander, one Farnsworth, was nearer than Dirk-son and Eberhart, and saw Ford, and appears to have heard his outcries more distinctly. He was distant from Ford only about ten rods, but still a little further, probably, than Weeks was.
The unfavorableness of Weeks’ situation for hearing the outcries was due to facts which, remain to be stated. The moving portion of the train, it appears, consisted of six or seven cars, and Weeks stood on the third from the engine. [631] They were backing southward to be coupled to some cars standing on the track a few rods distant, Eord crossed the track south of the moving cars, from the west side to the east side, and then re-entered upon the track south of the moving cars, and between them and the standing cars. When he re-entered upon the track he passed out of sight of Weeks. It is not expressly shown what obstructed Weeks’view of Ford, but it is abundantly evident that it was that portion of the train which was between them. The evidence shows that there were three or four moving cars south of th.e ear on which Weeks was standing. Whatever obstructed Weeks’ view of Ford must, also, to some extent, have obstructed the sound of Ford’s outcries. It is also shown that the engine was making some noise, and that noise, together with the noise- of the moving cars, a part of'which was between Weeks and Ford, must have tended to some extent to drown the sound of the outcries, and especially as there was a high wind at the time. Weeks’ situation, then, was so different from that of the by-standers that the fact that they heard Ford’s first outcries does not show that Weeks did, and does not tend to overcome Weeks’ positive testimony that he set a brake and gave a signal to stop as soon as he heard the outcries. A circumstance entirely consistent with direct evidence does not raise an inference in rebuttal of it. And a verdict based upon such circumstance and in contravention of the direct evidence cannot be sustained.
One theory of the plaintiff’s counsel is that Weeks stood and listened to Ford’s outcries, knowing that lie was in distress, until it was.too late to prevent the cars from running over him. Such conduct would have been evidence of the deepest malice, and yet there is no evidence or pretense that Weeks entertained other than kind -feelings towards his co-employe and fellow brakeman. It may be that Weeks should have given the signal to stop before he set the brake; but it is not shown in evidence -that he should, nor is it 'so claimed in argument. A little time was necessarily consumed [632] in setting tlie brake before the signal was given. When given, it was given to the fireman who was watching for signals, and was by him given to the engineer. According to the evidence, the engineer, after receiving the signal, could not reverse his engine in less than two or three seconds, and, when reversed, it would run a car-length. The evidence shows that the train was loaded with coal, and that a train thus loaded cannot be suddenly stopped. The direct evidence of promptness on the part of those in control of the train was not only unrebutted by direct evidence, but, so far as we can see, by any proven circumstance. The signal might, it is true, have been different, and we think from the evidence that it should have been. It appears to have been a mere signal to stop, and did not indicate an emergency; but, according to the" undisputed' evidence, the train was stopped as soon as it could be, and if so the signal given answered the full purpose of one indicating an emergency. In our opinion the verdict is without support, and the judgment must be
Reversed.