BRAWLEY, District Judge.
It is difficult to mark with prensión the exact line which separates the functions of the judge from the functions of the jury in actions of negligence; for this being a mixed question of law and fact, and the terms by which it is usually defined having a relative significance, the rule requiring judges to decide questions of law, and juries to decide questions of fact, is perplexed with subtleties when applied to the special circumstances of each particular case. When the facts are undisputed, and such that all reasonable minds must draw the same conclusion from them, it is clearly the duty of the judge to say, as matter of law, whether or not they make a case of actionable negligence; but such is the in-[981]*981iinuity of the burnaii mind, and such its idiosyncrasies, that minds equally honest may sometimes draw different conclusions from the same facts, in all such cases, and wherever the facts are in dispute, it is as clearly the duty of the judge to submit them to the jury; for the law holds that 12 impartial men, applying their separate and varied observations and experiences of everyday life to the decision of questions of fact, are more likely to reach a correct conclusion than a single judge; and this must be so, if “the jury system is worthy to be preserved. The courts have long since abrogated the doctrine that a mere scintilla of evidence from which there might: be a surmise of negligence is sufficient to carry a case to a jury, and have adopted the more reasonable rule that in all cases there is a preliminary question, which the judge must decide, — whether, granting to the testimony all the probative force to which it is entitled, a jury can properly and justifiably infer negligence from the facte proved; for, while negligence is usually an inference from facts, It must be proved, and compel ent and sufficient evidence is as much required to {trove it as to {trove any other fact. The simples!, definition of “negligence” is, absence of due care under the circumstances. This seems easy of comprehension, but when one attempts to apply it lo a particular case the inherent vagueness of the terms “due care” and “reasonable prudence” becomes apparent; for there is no fixed and immutable standard by which to measure duly in the varying and diverse transactions and happenings of life, and what may be due cam in one condition and relation is the want of it in another. A-process of ratiocination, therefore, becomes necessary, — comparison and deduction. Wien this conies into play, new difficulties arise, from the distinctive individualities, peculiarities, and anfraetuosities of the human mind. Of all the reported cases wherein judges have granted nonsuits or directed verdicts in actions of negligence, there are few where other judges, equally conscientious, might not have discovered some fact which would be considered rightly capable of producing a, different impression on other minds, and therefore properly cognizable by a. jury. One clear thread seems to run through them all, and that: is that in all actions founded on negligence, whenever the facts are in dispute or conflicting, or the credibility of witnesses is Involved, or the preponderance of testimony, and wherever the facts admitted or not denied are such that fair-minded men might draw different inferences from them, it is a ease for a jury, and a case should not be withdrawn from the jury unless the inferences from 1he facts are so plain as to be a legal conclusion. In the case now under review the essential facts are few and undisputed. It is in attempting to draw inferences from those facts that we are plunged into a sea of uncertainty, where there is no chart directing to an infallible conclusion. A learned and conscientious judge, in dismissing the complaint, has, in effect, decided that: no inference of negligence could rigidly be deduced from these facts. It was lilts duly to so decide if the case was so plain that: he would have been impelled to set aside the verdict as one rendered through prejudice, passion, or «mi-lee. It is equally our duty to review the correctness of his conclusion.
[982]*982The accident out of which the action grew occurred near Melrose, on the Asheville & Spartanburg Railroad, between 3 and 4 o’clock in the morning of October 10, 1894. The plaintiff was the conductor of a freight train, and left Asheville a little after midnight with a train of 16 loaded cars, arriving at Saluda about half past 2 o’clock. The rules of the company required the conductor to go over his train with the engineer at Saluda, and to inspect the brakes and appliances. A helper -engine is kept at Saluda to help trains up and down the grade. It was usually employed in helping trains up the grade, but could be used in going down, if required. It was not manned or fired that morning, and the conductor, not deeming it necessary, did not ask for it. Between Saluda and Melrose, the first station 3 miles to the east, there is a very steep grade, — about 240 to 260 feet to the mile. For a half mile after leaving Saluda the train was kept under control. After that the brakes failed to hold, the train got beyond control and rushed down the mountain side at a terrific speed past Melrose, the foot of the steep grade, and was wrecked at a point one-half mile below where there is a sharp curve, and the plaintiff received injuries which necessitated the amputation of his leg. It is impossible for any fair-minded man to say with certainty what caused the train to get beyond control. There was evidence that some of the brakes were found defective on the arrival at Saluda, but they were repaired, and the conductor evidently concluded that his train was in a safe and suitable condition to make the descent; for, having the right to demand the assistance of the helper, he did not ask for it. In the opinion of the presiding judge, he “was a man of intelligence, of good habits, of experience in the management and movement of trains, perfectly familiar with this steep grade on which the wreck occurred, and its dangers.” The cause which led to the train getting beyond control may therefore be said to be inscrutable. We do not find any proof of such negligence on the part of the company in not providing safe machinery and appliances as would sustain a verdict against it. Nor is there- any proof of such contributory negligence on the part of the plaintiff as would prevent his recovery if negligence on the part of the company had been established. The best machinery that can be provided will sometimes fail to respond to the demands upon it, as the most careful of human beings will sometimes omit due precautions. Inattention and accident are incident to human affairs. This being the obvious conclusion of all human experience, it is a duty to provide against such contingencies, and the omission to make such provision may be justly regarded as negligence. Whether there was such omission of duty in this case is the only question to be considered, for there is no sufficient evidence of negligence as to the cars and brakes and other appliances. In view of the testimony that accidents of this nature had frequently occurred at this very place, and in the very manner detailed here; that it was an extremely steep grade; — a dangerous place, where accidents- were likely to occur, — we hold that it was an obvious duty of the defendant company, not only to take every precaution to prevent such accidents, but also to provide against the consequences ..thereof, and to minimize the [983]*983dangers likely to flow therefrom, if they could not, in the nature of things, be altogether prevented. As to whether that could be effectually accomplished, we express no opinion.
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BRAWLEY, District Judge.
It is difficult to mark with prensión the exact line which separates the functions of the judge from the functions of the jury in actions of negligence; for this being a mixed question of law and fact, and the terms by which it is usually defined having a relative significance, the rule requiring judges to decide questions of law, and juries to decide questions of fact, is perplexed with subtleties when applied to the special circumstances of each particular case. When the facts are undisputed, and such that all reasonable minds must draw the same conclusion from them, it is clearly the duty of the judge to say, as matter of law, whether or not they make a case of actionable negligence; but such is the in-[981]*981iinuity of the burnaii mind, and such its idiosyncrasies, that minds equally honest may sometimes draw different conclusions from the same facts, in all such cases, and wherever the facts are in dispute, it is as clearly the duty of the judge to submit them to the jury; for the law holds that 12 impartial men, applying their separate and varied observations and experiences of everyday life to the decision of questions of fact, are more likely to reach a correct conclusion than a single judge; and this must be so, if “the jury system is worthy to be preserved. The courts have long since abrogated the doctrine that a mere scintilla of evidence from which there might: be a surmise of negligence is sufficient to carry a case to a jury, and have adopted the more reasonable rule that in all cases there is a preliminary question, which the judge must decide, — whether, granting to the testimony all the probative force to which it is entitled, a jury can properly and justifiably infer negligence from the facte proved; for, while negligence is usually an inference from facts, It must be proved, and compel ent and sufficient evidence is as much required to {trove it as to {trove any other fact. The simples!, definition of “negligence” is, absence of due care under the circumstances. This seems easy of comprehension, but when one attempts to apply it lo a particular case the inherent vagueness of the terms “due care” and “reasonable prudence” becomes apparent; for there is no fixed and immutable standard by which to measure duly in the varying and diverse transactions and happenings of life, and what may be due cam in one condition and relation is the want of it in another. A-process of ratiocination, therefore, becomes necessary, — comparison and deduction. Wien this conies into play, new difficulties arise, from the distinctive individualities, peculiarities, and anfraetuosities of the human mind. Of all the reported cases wherein judges have granted nonsuits or directed verdicts in actions of negligence, there are few where other judges, equally conscientious, might not have discovered some fact which would be considered rightly capable of producing a, different impression on other minds, and therefore properly cognizable by a. jury. One clear thread seems to run through them all, and that: is that in all actions founded on negligence, whenever the facts are in dispute or conflicting, or the credibility of witnesses is Involved, or the preponderance of testimony, and wherever the facts admitted or not denied are such that fair-minded men might draw different inferences from them, it is a ease for a jury, and a case should not be withdrawn from the jury unless the inferences from 1he facts are so plain as to be a legal conclusion. In the case now under review the essential facts are few and undisputed. It is in attempting to draw inferences from those facts that we are plunged into a sea of uncertainty, where there is no chart directing to an infallible conclusion. A learned and conscientious judge, in dismissing the complaint, has, in effect, decided that: no inference of negligence could rigidly be deduced from these facts. It was lilts duly to so decide if the case was so plain that: he would have been impelled to set aside the verdict as one rendered through prejudice, passion, or «mi-lee. It is equally our duty to review the correctness of his conclusion.
[982]*982The accident out of which the action grew occurred near Melrose, on the Asheville & Spartanburg Railroad, between 3 and 4 o’clock in the morning of October 10, 1894. The plaintiff was the conductor of a freight train, and left Asheville a little after midnight with a train of 16 loaded cars, arriving at Saluda about half past 2 o’clock. The rules of the company required the conductor to go over his train with the engineer at Saluda, and to inspect the brakes and appliances. A helper -engine is kept at Saluda to help trains up and down the grade. It was usually employed in helping trains up the grade, but could be used in going down, if required. It was not manned or fired that morning, and the conductor, not deeming it necessary, did not ask for it. Between Saluda and Melrose, the first station 3 miles to the east, there is a very steep grade, — about 240 to 260 feet to the mile. For a half mile after leaving Saluda the train was kept under control. After that the brakes failed to hold, the train got beyond control and rushed down the mountain side at a terrific speed past Melrose, the foot of the steep grade, and was wrecked at a point one-half mile below where there is a sharp curve, and the plaintiff received injuries which necessitated the amputation of his leg. It is impossible for any fair-minded man to say with certainty what caused the train to get beyond control. There was evidence that some of the brakes were found defective on the arrival at Saluda, but they were repaired, and the conductor evidently concluded that his train was in a safe and suitable condition to make the descent; for, having the right to demand the assistance of the helper, he did not ask for it. In the opinion of the presiding judge, he “was a man of intelligence, of good habits, of experience in the management and movement of trains, perfectly familiar with this steep grade on which the wreck occurred, and its dangers.” The cause which led to the train getting beyond control may therefore be said to be inscrutable. We do not find any proof of such negligence on the part of the company in not providing safe machinery and appliances as would sustain a verdict against it. Nor is there- any proof of such contributory negligence on the part of the plaintiff as would prevent his recovery if negligence on the part of the company had been established. The best machinery that can be provided will sometimes fail to respond to the demands upon it, as the most careful of human beings will sometimes omit due precautions. Inattention and accident are incident to human affairs. This being the obvious conclusion of all human experience, it is a duty to provide against such contingencies, and the omission to make such provision may be justly regarded as negligence. Whether there was such omission of duty in this case is the only question to be considered, for there is no sufficient evidence of negligence as to the cars and brakes and other appliances. In view of the testimony that accidents of this nature had frequently occurred at this very place, and in the very manner detailed here; that it was an extremely steep grade; — a dangerous place, where accidents- were likely to occur, — we hold that it was an obvious duty of the defendant company, not only to take every precaution to prevent such accidents, but also to provide against the consequences ..thereof, and to minimize the [983]*983dangers likely to flow therefrom, if they could not, in the nature of things, be altogether prevented. As to whether that could be effectually accomplished, we express no opinion. That seems to us peculiarly a question of fact, to which a jury should respond under such instructions as the court would properly give. The testimony in tills case showed that about one-half mile from the foot of the steep grade there was a sharp curve, where the train was derailed, and that there was no guard rail at that curve. A witness who claimed to have had 20 or 25 years of experience as a railroad constructer, and one who had been a section boss lor 16 years, testified that a guard rail upon such a curve would be a great safeguard; that guard rails are used upon a great many railroads; that they have a tendency to hold the flange of the wheels on, and to prevent their leaving the track, and as such they are a great protection. If this testimony is to be believed, it is impossible to resist the conclusion that the absence of the guard rail may have been the cause of the derailment. That it is the duty of a railroad company to provide a safe track and roadbed, and that its employ és should not be exposed to any perils or hazards against which they may be guarded by proper diligence, is a proposition which cannot be disputed; and the degree of care is to be measured by the exigencies of the situation, and will often depend upon the situation of the road and the topography of the ground. Persons employed upon a road such as this undoubtedly assume greater risks than upon level lands, but on the other hand the degree of care and prudence in the construction of a track through mountain ranges varies with the circnmsi anees, and what might not be a faulty construction upon the level would be so in a land of steep grades and sharp curves. Engineering questions should not be left entirely to the varying and uncertain opinion of juries, blit the well-established rule as to the duty of a railroad company to use due care and skill in the construction and maintenance of track and roadbed cannot foe abrogated. There is a common knowledge, which may be gathered from the experience and observations of everyday life, which, while it may not outweigh the opinion of competent engineers, is entitled to be considered in connection with it; and, where previous accidents at the same place from the same cause had directed attention to a source of danger, it seems to us to present a question of fact, for the determination of a jury, under proper instructions, whether, under (he circumstances of this case, the plaintiff was subjected to any increased and unnecessary danger by reason of the failure of the defendant company to provide a guard rail, or some other appliance which would have prevented the derailment. It may be that the company might show that a guard rail would not answer that purpose, but that is a matter of defense. A railroad company, in relation to its servants, is not bound to adopt every new invention which may lessen danger. If it keeps reasonably abreast with improved methods, its servants must determine for themselves whether they will encounter the hazards incidental to tin? service. Nor can it always be said, after an accident has occurred, that it ought to have been anticipated by the1 use of some special device or precaution not in common use. The happening of an accident does not of itself prove negligence, but, [984]*984where it reveals defects of such character and of such long standing that.ordinary diligence would have discovered and ordinary care have prevented them, a company cannot be. free from the imputation of negligence in failing to adopt some safeguards or preventive remedies proportioned to the imminency of the danger. If the injury is the combined result of accident and negligence, the fact that the contributing cause was pure accident would not exonerate a defendant, if guilty of a want of ordinary care, by which the result of the unavoidable calamity might have been essentially mitigated. Our records show another case at this term where a train was derailed at this same spot, and the testimony showed that accidents had been frequent there. Mr. Justice Field, in District of Columbia v. Armes, 107 U. S. 525, 2 Sup. Ct. 845, says: “The frequency of accidents at a particular place would seem to be good evidence of its dangerous character. At least, it is some evidence to that effect.” The testimony of Corpening, a railroad builder of over 20 years’ experience, was that a guard rail at the curve would have been a great safeguard, and would have tended to keep the train on the track. The testimony of Owens, formerly a section boss, of 1G years’ experience, was to the same effect. The case, therefore, does not seem to us to fall within the rule above stated, in that there was some testimony from which, if believed, a jury might have fairly inferred that the company was negligent in not providing guard rails at the curve. “It is well settled,” says Mr. Justice Brewer in Railroad Co. v. Powers, 149 U. S. 45, 13 Sup. Ct. 749, “that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” “If fair-minded men may draw different inferences,” says the court in Railroad Co. v. McDade, 135 U. S. 572, 10 Sup. Ct. 1049, “no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be reasonable and prudent,” says Mr. Justice Lamar in Railway Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. 682. “Where the inference to be drawn from the facts is not so plain as to be a legal conclusion.” Railroad Co. v. Egeland, 163 U. S. 93, 16 Sup. Ct. 975. “There can be no doubt, where evidence is conflicting, that it is the province of the jury to determine from such evidence the proof which constitutes negligence.” Mr. Justice White in Railroad Co. v. Pool, 160 U. S. 440, 16 Sup. Ct. 339; Railroad Co. v. Stout, 17 Wall. 664; Jones v. Railroad Co., 128 U. S. 446, 9 Sup. Ct. 118; Kane v. Railroad Co., 128 U. S. 91, 9 Sup. Ct. 16. Courts cannot fix, themselves, nor allow juries to fix, an arbitrary standard of duty in any given case. Nor can it be left entirely to surmise, conjecture, guess, or random judgment, whether proper precautions were taken, or whether any precautions would have warded off the result. Nor can the varying and uncertain opinions of jurors be permitted to determine engineering or scientific questions. We express no opinion upon these points. All that we determine is that there was testimony sufficient to go to the jury in this case. If their minds are [985]*985properly directed i.o tire precise; questions which it is their province *o determine, and they are not swayed by extraneous circumstances, there should be little danger oí a miscarriage of justice. The right and duty of a court to set aside a verdict not supported by adequate testimony, always inflexibly maintained, will suffice to correct an occasional abuse. Judgment reversed and case remanded, with instructions to grant a new trial.