Eti-ieidge, J.,
delivered the opinion of the court.
This is an appeal by the Gulf & Ship Island Eailroad Company from a judgment against it for thirty thousand dollars in favor of the appellees for the death of Thomas Grafton Prine, a son of Laura Prine and brother of the other appellees. Thomas Grafton Prine. [100]*100was a private soldier in the First Regiment Mississippi National Guard, being at the time in the service of the United States government and being assigned to duty as a guard over Brooklyn Bridge on the Gulf & Ship Island Railroad in this state. The death of Prine occurred about 2:30 a. m. on or about the 25th day of May, 1917.
It appears that a squad of men under a sergeant and corporal was assigned to duty at Brooklyn Bridge to guard the bridge to prevent injuries from either alien enemies or their friends ■ and sympathizers, and that three posts or guards along the trestle and bridge in question were established, a guard having a post in the section of the bridge and trestle to guard, and there given a beat or place to patrol. About thirty minutes before the injury the corporal in charge of the squad went upon the bridge and called to young Prine, who was then on duty, and Prine went to where the corporal was, and they had some conversation, and the corporal went away, leaving Prine upon the bridge or trestle near the span of the bridge, which was the. last time that Prine was seen by the corporal.
One of the other soldiers on duty testified that shortly after the corporal left Prine he saw him strike a match and light a cigarette. This was some twenty minutes before the train passed which killed Prine.
In approaching the bridge the train which killed Prine came around a curve some one thousand two hundred yards south of the bridge, and the train was equipped with a powerful electric headlight. The soldiers on duty testified that the train in approaching did not blow the whistle or ring the bell. That there was a signboard. some six hundred yards south of the bridge marked “W,” which was designed as á whistling board, and that the engineer did not blow the whistle or ring the bell in approaching. A private soldier, stationed on duty north of the bridge, states that when the engine came [101]*101around the curve and was approaching, he looked down the track from the north of the bridge, and did not see Prine on the bridge. On cross-examination he states that the light from the headlight was. blinding, and it was possible for Prine to have been on the bridge or trestle without his seeing him. He testified that when the engine got opposite him at his post of duty he heard a grinding sound as though the engine was crushing or grinding something on the track, and as the caboose passed him he heard something fall into the river or creek under the bridge, and that he called to Private Prine, but got no response, and then called the corporal of the guard, and they made an investigation and found the remains of Prine scattered along the railroad, one of his arms being severed and falling into the creek. The first indication of blood upon the track was some twelve feet south of the steel span of the bridge upon the trestle, and that Prine’s hat was south of where signs of blood were seen; that the gun of Prine was broken and his head was cut off, both arms severed, and part of his body was along the track near where this soldier was stationed, being cut in two. In other words, the physical facts showed that Prine was. struck south of the trestle, and that his body was carried along the track across the trestle to the north side thereof and was mutilated.
It is further testified for the plaintiff that the engineer had been approached by the corporal of the guard a few days prior to the injury, and requested to give signals on approaching the bridge so that the soldiers could extricate themselves from a position of danger, and that the engineer refused to give such signals, stating it was not his duty to give signals, that it was the duty of the soldier to stay out of a place of danger, and off the track when the trains were approaching.
The engineer testified that, on approaching the bridge, as he came out of the curve south of the bridge, he [102]*102sounded his whistle by giving a long blast, and that the conductor or some one in the caboose gave him the high ball or go ahead signal, and that he answered this signal with two short blasts of the whistle, and the bell was kept ringing until the bridge was crossed, that his train was . in good condition, the headlight burning brightly, and that he was keeping a close lookout because on a- former occasion a soldier had been killed at this bridge, and that he knew the soldiers were there, and on several occasions had seen them asleep on post of duty, and that on one occasion he had stopped his train to prevent injury to a soldier on duty. He denied he had been approached and requested to give signals on approaching the bridge, and denied the conversation alleged to have been had between him and the corporal. He testified he could see the bridge, and that Prine .was not upon the track and not run over by his engine. He testified that his first knowledge of Prine being-killed was when he reached Hattiesburg some distance above Brooklyn, when it was reported that a soldier had been killed at the bridge, whereupon he inspected his engine, and there were no signs of blood upon any part of his engine. He did not inspect his cars attached to his engine, but testified that, if there had been blood on the wheels of his engine, if they had run over a. person or animal, when he applied his brakes, heat would be generated, and the flesh and blood on the wheels would burn, giving forth an offensive odor, by which he could always tell whether he had run over a person or animal, and on this trip there had been no scent by which he could' tell that there had been any person or animal ^ run over by the engine.
No person saw Prine at the time he was injured, and the fireman corroborated the engineer, saying he was on the lookout himself, and that he did not see Prine, and that he could see the track clearly, and that Prine was not upon the track when the engine passed. He [103]*103also says lie was ringing tire bell from the curve on to the bridge, and that the headlight was burning brightly, and he could see the track from the curve to the bridge, and that there was no person on it.
The conductor testified that the signals were given as testified by the engineer, and that he gave him the go ahead signal, as no stop was to be made at Brooklyn that night.
It appears in the testimony of the corporal and sergeant that Prine had a right to go upon the trestle ox-bridge in his duties, and that no order was given prohibiting him from doing so.
It is also testified by Maj. Hogaboom that Prine had no right to go upon the bridge without an order from the corporal or officer of the bridge to do so; that his post was below the bridge, and that he would be violating military law to go upon the bridge without an order; that if he saw any person upon the bridge or near it, it would be his duty to call the corporal of the guard; and that under no circumstances would he have a right to go upon the bridge without an order so to do. Maj. Hogaboom says there was no written order, and that he was not present with the guard at the time of the injury.
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Eti-ieidge, J.,
delivered the opinion of the court.
This is an appeal by the Gulf & Ship Island Eailroad Company from a judgment against it for thirty thousand dollars in favor of the appellees for the death of Thomas Grafton Prine, a son of Laura Prine and brother of the other appellees. Thomas Grafton Prine. [100]*100was a private soldier in the First Regiment Mississippi National Guard, being at the time in the service of the United States government and being assigned to duty as a guard over Brooklyn Bridge on the Gulf & Ship Island Railroad in this state. The death of Prine occurred about 2:30 a. m. on or about the 25th day of May, 1917.
It appears that a squad of men under a sergeant and corporal was assigned to duty at Brooklyn Bridge to guard the bridge to prevent injuries from either alien enemies or their friends ■ and sympathizers, and that three posts or guards along the trestle and bridge in question were established, a guard having a post in the section of the bridge and trestle to guard, and there given a beat or place to patrol. About thirty minutes before the injury the corporal in charge of the squad went upon the bridge and called to young Prine, who was then on duty, and Prine went to where the corporal was, and they had some conversation, and the corporal went away, leaving Prine upon the bridge or trestle near the span of the bridge, which was the. last time that Prine was seen by the corporal.
One of the other soldiers on duty testified that shortly after the corporal left Prine he saw him strike a match and light a cigarette. This was some twenty minutes before the train passed which killed Prine.
In approaching the bridge the train which killed Prine came around a curve some one thousand two hundred yards south of the bridge, and the train was equipped with a powerful electric headlight. The soldiers on duty testified that the train in approaching did not blow the whistle or ring the bell. That there was a signboard. some six hundred yards south of the bridge marked “W,” which was designed as á whistling board, and that the engineer did not blow the whistle or ring the bell in approaching. A private soldier, stationed on duty north of the bridge, states that when the engine came [101]*101around the curve and was approaching, he looked down the track from the north of the bridge, and did not see Prine on the bridge. On cross-examination he states that the light from the headlight was. blinding, and it was possible for Prine to have been on the bridge or trestle without his seeing him. He testified that when the engine got opposite him at his post of duty he heard a grinding sound as though the engine was crushing or grinding something on the track, and as the caboose passed him he heard something fall into the river or creek under the bridge, and that he called to Private Prine, but got no response, and then called the corporal of the guard, and they made an investigation and found the remains of Prine scattered along the railroad, one of his arms being severed and falling into the creek. The first indication of blood upon the track was some twelve feet south of the steel span of the bridge upon the trestle, and that Prine’s hat was south of where signs of blood were seen; that the gun of Prine was broken and his head was cut off, both arms severed, and part of his body was along the track near where this soldier was stationed, being cut in two. In other words, the physical facts showed that Prine was. struck south of the trestle, and that his body was carried along the track across the trestle to the north side thereof and was mutilated.
It is further testified for the plaintiff that the engineer had been approached by the corporal of the guard a few days prior to the injury, and requested to give signals on approaching the bridge so that the soldiers could extricate themselves from a position of danger, and that the engineer refused to give such signals, stating it was not his duty to give signals, that it was the duty of the soldier to stay out of a place of danger, and off the track when the trains were approaching.
The engineer testified that, on approaching the bridge, as he came out of the curve south of the bridge, he [102]*102sounded his whistle by giving a long blast, and that the conductor or some one in the caboose gave him the high ball or go ahead signal, and that he answered this signal with two short blasts of the whistle, and the bell was kept ringing until the bridge was crossed, that his train was . in good condition, the headlight burning brightly, and that he was keeping a close lookout because on a- former occasion a soldier had been killed at this bridge, and that he knew the soldiers were there, and on several occasions had seen them asleep on post of duty, and that on one occasion he had stopped his train to prevent injury to a soldier on duty. He denied he had been approached and requested to give signals on approaching the bridge, and denied the conversation alleged to have been had between him and the corporal. He testified he could see the bridge, and that Prine .was not upon the track and not run over by his engine. He testified that his first knowledge of Prine being-killed was when he reached Hattiesburg some distance above Brooklyn, when it was reported that a soldier had been killed at the bridge, whereupon he inspected his engine, and there were no signs of blood upon any part of his engine. He did not inspect his cars attached to his engine, but testified that, if there had been blood on the wheels of his engine, if they had run over a. person or animal, when he applied his brakes, heat would be generated, and the flesh and blood on the wheels would burn, giving forth an offensive odor, by which he could always tell whether he had run over a person or animal, and on this trip there had been no scent by which he could' tell that there had been any person or animal ^ run over by the engine.
No person saw Prine at the time he was injured, and the fireman corroborated the engineer, saying he was on the lookout himself, and that he did not see Prine, and that he could see the track clearly, and that Prine was not upon the track when the engine passed. He [103]*103also says lie was ringing tire bell from the curve on to the bridge, and that the headlight was burning brightly, and he could see the track from the curve to the bridge, and that there was no person on it.
The conductor testified that the signals were given as testified by the engineer, and that he gave him the go ahead signal, as no stop was to be made at Brooklyn that night.
It appears in the testimony of the corporal and sergeant that Prine had a right to go upon the trestle ox-bridge in his duties, and that no order was given prohibiting him from doing so.
It is also testified by Maj. Hogaboom that Prine had no right to go upon the bridge without an order from the corporal or officer of the bridge to do so; that his post was below the bridge, and that he would be violating military law to go upon the bridge without an order; that if he saw any person upon the bridge or near it, it would be his duty to call the corporal of the guard; and that under no circumstances would he have a right to go upon the bridge without an order so to do. Maj. Hogaboom says there was no written order, and that he was not present with the guard at the time of the injury.
The proof shows that Prine was a young man in military'service, a private soldier getting thirty .dollars per month, of which he contributed twenty dollars per month to his mother and brothers and sisters.
Upon this evidence the court below granted a peremptory instruction to find for the plaintiff in the following words:
“The court charges the jury to find for the plaintiffs in this case, and it shall be your duty as jurors to award such damages as the jury may determine from the evidence to be just, taking into consideration all damages of every kind to any and all parties interested in this suit, as shown by the evidence. The exact [104]*104amount of such damages cannot he proven in dollars and cents, but the amount of the same is largely in your discretion to be determined from the evidence, and in fixing the amount you ought to be governed by the application of that sense of justice and right as the evidence in the case should warrant, and return your verdict for such an amount as you shall determine from the evidence to be just, not to exceed the amount sued for, to wit, fifty thousand dollars.”
It is assigned for error, and insisted: First, that the state court did not have any jurisdiction, that the rights of Prine, whatever they may be, were governed by the federal law,- and that the state court did not have jurisdiction to entertain suit at all; second, that it was error to give a peremptory instruction if the state law applied.
In answer to the first objection that the state court did not have jurisdiction, and that the suit, if any action lay, must be brought in the federal court, we desire to say that in our judgment no federal question arises on this record. We have been referred to no statute bearing upon the subject, and no decision of any court sustaining this view.
We think, however, it was error .to give the peremptory instruction. The rule in giving a peremptory instruction is that, conceding all the facts to be true which the testimony tends to establish, and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made, or nothing to be submitted to the jury.
It is insisted here that the prima-facie statute (section 1985, Code of 1906; section 1645 of Hemingway’s Code) applies; that the railroad company failed to meet the burden and overcome the presumption of the statute. We think on -the particular facts of this record that the jury could have found favorably to the railroad. We also think the jury could have found for the [105]*105plaintiff on the question of liability. There is a sharp conflict between the witnesses for the plaintiff and the defendant as to what the defendant did upon approaching the bridge. If we accept the view of the defendant, it was operating carefully, giving proper signals, keeping a sharp lookout, and doing all that could reasonably be expected under the circumstances. If we accept the view of the plaintiffs and the testimony of the witnesses favorable to the plaintiffs, the railroad company was negligent.
We think the question of liability should be submitted to the jury upon proper instructions.
Reversed and remanded.