Lake, J.
This is a proceeding in error, brought to reverse the judgment of the District Court for Otoe County, rendered in an action instituted by the defendant in error to recover damages for personal injuries alleged to have been sustained by her in consequence of the carelessness of the plaintiffs in error in running a train of cars over said company’s railroad within the corporate limits of Nebraska City.
The errors complained of may all be included under three general heads: first, errors of the Court in the instructions given to the jury on its own motion; second, errors in refusing to charge as requested by the defendant; and third, that the verdict is not sustained by sufficient evidence. I will notice these alleged errors in the order here indicated.
The first objection cannot be sustained. The record shows that the Court instructed the jury upon several questions involved in the case, among which was that of the contributory negligence of the plaintiff’s parents in permitting so young a child to wander from home into the dangerous locality of the accident, as affecting her right to recover for the injuries sustained.
While I am not now prepared to give an unqualified approval to all that is contained in this charge of the [335]*335learned judge who presided at the trial, yet, there being several propositions included therein which are undoubtedly correct, and entirely applicable to the case, and the exception going to the whole charge, it cannot be sustained. McReady v. Rogers, 1 Neb., 124.
On the question of the parents’ negligence, we find the courts very much divided in opinion as to whether it should be permitted to prejudice the plaintiff’s right to a recovery; and, for the reason that we can dispose of the case without passing upon it, we prefer at this time to leave it undetermined.
It is next objected that the Court refused the second request for instructions, but gave it in a modified and objectionable form.
In the refusal to give the instructions as presented, I perceive no errof. It was in these words: “ If the jury believe from the evidence, that, while the defendants’ cars were in motion, the plaintiff ran on to and upon the railroad-track in front of the cars, and so near to the same that it was impossible to stop the train before the same struck and passed over her, they will find for the defendants.”
This is not the law. It would permit those in charge of the train to run it at the highest possible rate of speed in a quite thickly-settled portion of a city, without incurring any liability whatever for an injury done; when by a reasonably moderate rate, such as is usual in such localities, it would not have happened. I am of the opinion that an injury done under such circumstances might render the defendants liable.
It is doubtless true, even in the absence of a statutory regulation upon the rate of speed upon railroads within the thickly-settled portion of cities and villages, that a reasonable rate must be observed, which is to be determined from a due consideration of all the [336]*336circumstances. A proper regard for the safety of the inhabitants and their property imperatively requires that this should be so. It is but an application of the same wholesome rule to railroad companies in running their trains that would govern an individual in driving a team of horses along a public thoroughfare. Here it is quite clear that a rate of speed that would be entirely justifiable in the open and sparsely-settled country, might, in the crowded streets of a city, be considered as criminal carelessness. The Frankford and Bristol Turnpike Co. v. The Philadelphia Railroad Co., 54 Penn. St., 345.
But, while there was no error in the refusal to give this instruction, I am quite certain, that, as modified, it was erroneous, to the prejudice of the defendants. The modification is in these words: “ This is the law: Unless the conductor or engineer in charge of the train, by the exercise of care and watchfulness, might have seen the child or children running directly towards the track, so as to cross it, and, from their size and conduct, knew the child or children to be under the years of discretion, it was then the duty of those in charge of the train to check its speed if possible, and put the same under such control, if practicable, as to be able to avoid a collision with the children if they continued their course on to and across the railroad-track.”
This modification of the instruction, if taken in its unqualified literal sense, and as quite likely to be understood by the jury, would imply an imperative duty on the part of an engineer, whenever he sees a child of tender years running towards the track, to slack his speed, lest he might, perchance, stop in front of the moving train, and suffer injury, and this without reference to the relative position of the child and train. This would be a most unreasonable requirement, and not at all consistent [337]*337with the proper exercise of the rights.of the company in respect to their own property or their duty to the travelling public. But another fault is, it is altogether too indefinite, and has a strong tendency to mislead the minds of the jury, and to divert them from the real issues of the case.
The post of an engineer while running a train of cars is one of very great responsibility and danger. It not unfrequently calls for the immediate exercise of his judgment under circumstances that are well calculated to appall even the stoutest heart. It is his duty continually to exercise the greatest care consistent with the business in which he is engaged; and especially is it his duty to keep the track constantly in view, in order that any visible defects therein, or objects which may have been placed thereon, calculated to endanger his train or the safety of the passengers, may be avoided. He should also be watchful to a reasonable extent upon both sides of the track, to prevent all unnecessary collision with animals which might run upon the track from the immediate vicinity. But, while all this is due from an engineer, he should not be expected to perform impossibilities, or exercise a prescience that is greater than ordinarily falls to the lot of man.
Undoubtedly, if the engineer had seen this little child “ running directly towards the track,” in front of the moving train, with the apparent intention of going upon or crossing it, and so near as to lead a prudent person to conclude, unless the train were stopped or its speed slackened, a collision would be probable, had he failed to do all in his power to prevent it, having, of course, a due regard for the lives of those on board the train, he would have been guilty of culpable negligence, and his employers liable for the injury. But this is not the only substantial objection to this instruction as given to [338]*338the jury. It supposed a state of facts to exist which there was no evidence to support. There was no testimony tending even to show that the child was seen “ running towards the track,” or that she was in a position where she could have been seen by the engineer one moment sooner than she was, as sworn to by him. It is altogether probable, and it seems to be generally conceded, that she and her little brother were concealed in the small ditch which crossed the track at the place of the accident, and stepped out of it upon the track when the train was so near, that, by the efforts which were put forth, it was not stopped until the engine had passed over them.
The tendency of this instruction was to mislead the jury, and give them to understand that they were at liberty to resort to mere conjecture to enable them to account for what the testimony failed to show; and that they might infer the existence of a state of facts, in respect to the relative position of the parties, which the testimony would not warrant. There was no evidence upon which to predicate this instruction. The charge of the Court to the jury should always be founded on, and be applicable to, the testimony; and when it is not, and is calculated to mislead the jury in considering the facts of the case, the judgment ought to be reversed. Meredith v. Kennard, 1 Neb., 312, and cases there cited.
The third instruction requested by the defendants, and refused by the Court, was as follows: “ The fact that the train was crossing a public highway at the time the accident happened does not render the defendants liable for the injury to the plaintiff, if the jury find from the evidence that the plaintiff placed herself on the track in front of the cars, and so near to the same, that it was impossible, by the use of due diligence, to prevent the cars from running over her.”
[339]*339This is no doubt a correct proposition of law, and entirely applicable to the testimony which the jury were called upon to. consider. The refusal of the Court to give it left the jury to infer that the defendant was liable merely because the accident happened at a street-crossing, notwithstanding they may have been in no fault whatever in running the train; as, for instance, in their efforts to stop it just as soon as the perilous situation of the child was discovered.
This will not do. It is the right of a party to a suit, by proper instructions, to have the minds of the jury directed to the essential features of the case, and their attention challenged to the testimony which should influence them in making up their verdict. They should also be advised of the legal effect of the establishment of, or failure to establish, the material facts of the case. When, however, this is not done, but, on the contrary, their minds are diverted from the real issues to be tried, and permitted to wander outside* of the testimony into the region of mere conjecture, for the purpose of finding an excuse for returning a verdict in accordance with their own sympathies and desires, the chief value of a judicial trial is lost; and it is impossible to measure the injurious consequences that are likely to follow. More especially is this so in a case like the one at bar, where the jury had before them, as plaintiff against a railroad company, a mere child, who, by so terrible an accident, had been so unfortunate as to be made a cripple for life while perhaps endeavoring to rescue her little brother, who was so shockingly crushed to death.
The fourth instruction requested by the defendants ought to have been given without the modification made by the Court. The instruction was as follows, with the modification of the Court inserted therein in brackets : “ The negligence which will render the defendants lia[340]*340ble for tbe injury to tbe plaintiff must be such negligence as [contributed to cause] caused the injury.”
By refusing the instruction as tendered, and giving it as changed, the jury were given to infer, that any negligence of the defendants that in any way “ contributed to cause ” the injury, no matter how remote it may have been, was sufficient to fix their liability.
This instruction was altogether too general, and entirely failed to draw the proper distinction between that negligence which may have been existing and present at the time of the accident and that which could have had only a very remote and indirect bearing or influence upon it. The Philadelphia and Reading R. R. Co. v. Spearen, 47 Penn. State, 300.
The fifth instruction refused by the Court was predicated upon the fact, that, just where the accident happened, there was a small open ditch, some two feet in width by from six to eight inches in depth from the bottom of the ties, for conducting the water across the track. By it the Court was asked to instruct the jury, that the mere fact that the defendants had dug the ditch, and left the same open, was not an act of negligence on their part which would render them liable ; but the Court held otherwise, and denied the request. In this, I think, there was manifest error, which no doubt largely contributed to the verdict against the defendant.
But it is insisted on behalf of the plaintiff, that, because there was a conflict of testimony as to the size and exact location of the ditch, it was rightfully left to the jury to say whether leaving it open was an act of negligence on the part of the railroad company. This would be correct, if the ditch, as described by either of the witnesses, could be regarded as evidence tending to show negligence. Not only has no case been cited, but, after a pretty careful research, I have not been able to find [341]*341one, which furnishes any support to the position taken by the plaintiff’s counsel.
The digging of this ditch, and keeping it open, to pass the surface-water from one side of the track to the other, was not at all unusual, nor can it be regarded as an act of negligence. This the Court should have told the jury; and the refusal to do so left them at liberty to find negligence from this fact alone. Where a fact is relied upon as constituting negligence, the Court should, especially if requested, inform the jury, whether, if the fact be proven or admitted, they are at liberty to infer negligence therefrom. The jury have no right to determine that a given act is one constituting negligence in opposition to the judgment of the Court. And where, by a fair consideration of all the evidence, there is nothing shown to warrant a verdict against one or moré of the defendants, it is the right of the Court to either non-suit the plaintiff, or direct the jury to return a verdict against him as to such defendant. As to the Midland Pacific Railroad Company, this clearly is the course that should have been pursued, there being no evidence against them.
But did the testimony warrant a verdict against either of the defendants ? As to the railroad company, it is very clear that they were in no way responsible for the accident. The principle of respondeat superior, which has been invoked, and is relied upon by counsel for the plaintiff, has no application here. The relation of principal and agent, or master and servant, as to the railroad company, did not exist.
The testimony shows that B. C. Smith and J. T. Thomas, on behalf of themselves and. their associates, had entered into a written contract with the railroad company, whereby they undertook and agreed to build and fully equip the road from Nebraska City to Lincoln [342]*342entirely at their own labor and expense; and, at the time of the accident, the defendants, J. N. Converse & Co., were engaged in the construction of the road under this contract, only a very small portion of which had been done.
The persons engaged in the work were not under the control of the railroad company, nor had any portion of it been accepted or taken possession of by them. The locomotive and cars were the property of J. N. Converse & Co., used by them upon the work; and the engineer who was in charge at the time of the accident was in their employ, and under their exclusive control, and in no wise answerable to the company. Boswell et al. v. Laird et al., 8 Cal., 469.
Upon this state of facts, the Court very properly instructed the jury, in substance, that if they believed from the evidence, that, at the time the injury to the plaintiff occurred, the Midland Pacific Railroad was being built by J. N. Converse & Co. under a contract with the Midland Pacific Railroad Company, and that the train of cars that ran over the plaintiff was owned and operated by J. N. Converse & Co., and that the Midland Pacific Railroad Company had not at the time of the accident any control over said road or train, then the latter could not be held liable for the injury. This instruction was correct; and, had the jury been guided solely by the testimony, they could but have found that the exact state of facts existed which they were told would release the railroad company from all liability. There was no conflict in the testimony on this point; but still the jury saw fit to totally disregard both the evidence and instruction of the Court, and return a general verdict against all the defendants. For this disregard of their duty, the verdict, at least as to the railroad company, should have been promptly set aside.
[343]*343But what is the testimony upon which it is relied to support the judgment against the other defendants ? Is it sufficient to sustain the verdict against any of them ? If so, I apprehend there would be no difficulty or impropriety, under our code, in affirming it as to them; and, as to those against whom there is no testimony, to set it aside.
It is alleged in the petition, and the gravamen of the charge is, that the injury was caused by the gross carelessness of those in charge of the train in running it. It is in these words : that the defendants, “ by and through their carelessness, negligence, improper conduct, and default of themselves and their said servants, and for a want of due care and attention in that behalf, caused one of their locomotives, and train of cars attached thereto, to approach the said crossing of said Eleventh Street and public road,' and then and there caused their said locomotive, and train of cars attached thereto, to pass rapidly over the track of said railroad, and strike, run against, and over, the said plaintiff, and break one of the legs of the said plaintiff, and otherwise bruised and injured the said plaintiff; by reason whereof,” &o.
This was the sole charge against the defendants; and a reference to the testimony of the plaintiff will show that it was all directed to its support. It was, in fact, the sole cause of action. It is true, that, upon argument, allusion was made to the small ditch before mentioned, and it was made the subject of a request for an instruction by the defendants; but no complaint is made of it in the petition, nor is there any thing in the testimonj'- respecting it which should work the least prejudice to either of them. The Illinois Central Railroad Co. v. Middlesworth, 43 Ill., 64.
Upon the question of negligence in the running of the train, there were several witnesses examined on the [344]*344part of the plaintiff, whose statements as to the speed at which it was going, although somewhat conflicting, are no more so than should be expected under all the circumstances. They were occupying different positions 'at the time; and their minds being more or less diverted to other matters made it impossible that their accounts of the transaction should be altogether harmonious.
The witness Thompson testified that he “ did not see the spot where the accident occurred, but saw the train immediately before.” His opinion was, that, when he saw the cars, they were going “ at the rate of about twelve miles per hour;” that he “judged so from the speed of a horse.” But, on cross-examination, he swore that he “ did not know the rate of speed the cars were going.” Indeed, the entire testimony of this witness shows that his opinion as to the speed of the train was of very little value.
Mrs. Kearney, who lived but a short distance from the place of the accident, saw the train, but “ did not know how fast it ran; ” thinks it “ ran faster than she had ever seen it do before ” when passing her house.
Mrs. Hastings’s testimony is substantially the' same on this point.
Guy A. Brown testified, that, at the time of the accident, he was at work in his garden, about four hundred feet from where it happened; that he heard the whistle sound “ Down brakes ” when the locomotive was about fifty feet or more from the crossing; that he saw men at work at the brakes, and the train was stopped with the rear end of the hindmost car just west of the street. He thought the train was moving at the rate of from twelve to fifteen miles an hour when he first saw it, but would not be at all positive about it.
The witness Shorck is the only person, except the engineer in charge of the locomotive, who pretends to have [345]*345seen the plaintiff and her brother near the track before the injury. He swears that he saw them sitting between the ties, “ about two hundred and twenty-eight or three hundred and thirty-eight yards ” in front of the approaching train, which was running very fast, — faster than they were accustomed to run; but he gives no estimate of their speed.
But a due consideration of all the testimony of this witness compels me to give it very little weight. I am convinced he was swearing at random. For instance, when asked whether the speed of the train was slackened at all, he answered, that “ they did not until they struck the children : then they did.” When asked how far they ran after striking the children, he says, “ From three to five yards.” This could not have been possible, if the speed was as testified by any one of the witnesses. Not only does all the other testimony for the plaintiff establish, but the common experience of every person who has the least knowledge of a moving train of locomotive and cars shows, the utter worthlessness of this kind of testimony. It is entitled to no credit whatever, and should be disregarded, especially when it conflicts with that of other credible witnesses.
The witness Cash called by the plaintiff, who has had ■ large experience as an engineer in the running of locomotives, and who is, to all appearance, a very fair witness, swears that a train like this, composed of locomotive, tender, and one car, on this track, if skilfully handled, and running from five to six miles an hour, could have been stopped within about fifty yards; and, if going at the rate of, twelve miles an hour, within about one hundred yards.
Now, the plaintiff’s witness, Brown, while he somewhat loosely estimates the speed of the train when he first discovered it at about twelve miles an hour, says [346]*346very frankly that lie is in no wise certain about it; and testifies, that, when the whistle sounded “ Down brakes! ” the train was about fifty yards from the crossing where the accident occurred; that he saw persons applying the brakes, and the train was stopped just-west of the crossing. This shows quite conclusively that the speed of the train between the bridge and the place of the accident could not have exceeded five or six miles an hour, and that, upon the call of “ Down brakes! ” every reasonable effort was put forth to avoid a collision and save the plaintiff. I am of the opinion that there is next to a total want of evidence to support the charge of carelessness in the running or stoppage of the train, on the plaintiff’s own showing; while there is a large number of witnesses called by the defendants whose testimony all goes to confirm this conclusion.
It only remains to inquire whether the engineer was at all remiss in the duties resting upon him, — in keeping watch for objects upon the track, and in giving warning of the approach of the train. On this point I find no difficulty. The testimony shows most conclusively, that, from the time of starting from the depot, he used the whistle at all highways and crossings, fifty yards from each, and kept the bell constantly ringing; that he had the track constantly in view, and saw neither of the children until he was within about eighty feet of the crossing before spoken of.
The engineer swears, that, if the children had been on the track, he could have seen them; that he first saw the boy, and supposed he rose from the ditch; that he whistled “ Down brakes ” immediately, reversing the engine, and did all in his power to stop the train. The plaintiff he did not see until the locomotive was just about to strike her, and when he was exerting himself to the utmost to save the boy.
[347]*347After a very careful consideration of this case, I am forced to the conclusion, that the verdict as to all the defendants is clearly and palpably against the weight of evidence, and should not be permitted to stand. For these several reasons, the judgment must be reversed, and a trial de novo awarded.
Judgment accordingly.