Walker, I.
We will assume in the discussion of this case, that D. S. Soles, the flagman, was guilty of contributory negligence in going to sleep upon the track, and thus exposing himself to grave peril, and which did result in his death. But this is not all of the case, as the question still remains to be decided, whether the engineer,
after he discovered the peril of the intestate,
had sufficient time, with the appliances at hand, by the exercise of due care, to prevent the injury. The rule of this Court is, in ordinary cases, that if by the exercise of due care he
could Lave discovered the peril of the intestate in time to have avoided the result, the defendant would be liable. But we are proceeding under the Federal statute, and must decide according to the Federal law, as expounded by its highest Court.
•The rule, under the law as applied by the Federal courts in cases of negligence, is that the defendant is liable, if it could have avoided the injury which, in this case, caused the death of the intestate, by the exercise of ordinary care, only after discovering his perilous situation.
Judge Taft,
referring to this principle in
Newport News and M. W. Co. v. Howe,
52 Fed. Rep., 362, used this pertinent language: “As applied to cases like the present, therefore, we believe the rule relied on by the counsel of plaintiff below should be construed to mean that the negligence of the plaintiff will be no defense, if the defendant,
after he hnew the peril of plaintiff,
did not use due care to avoid it.” And adverting to certain expressions of the Court relating to the same question in
Inland & Seaboard Coasting Co. v. Tolson,
139 U. S., 551, he said: “This would seem to show that, in the opinion of the Supreme Court of the United States, knowledge of plaintiff’s peril was required to make the rule applicable.” And in
Little Rock R. and E. Co. v. Billings,
173 Fed. Rep., 903,
Justices Van Devanter, Sanborn,
and
Pollock
thus state the rule of the Federal Court, applying it to a state of facts very much like those we have here: “As deduced from the foregoing authorities, and many others that might be cited, this qualification may be stated as follows: A., who by his own negligent act or conduct, has placed himself in a position of imminent peril, of which he is either unconscious or from which he is unable to extricate himself if conscious, may not be carelessly, recklessly, or wantonly injured by B., who, after he has discovered and knows the helpless and perilous condition of A., and has it within his power to avoid doing him an injury by the exercise of reasonable care and diligence in the use of such instrumentalities as he can command; and the failure to exercise such reasonable care and diligence on the part of B. under such. circumstances will constitute actionable negligence, rendering him liable in damages to A., notwithstanding the prior negligent act of A. in placing himself in position to receive the injury.” This rule was expressed substantially the same way in
Grand Trunk R. Co. v. Ives,
144 U. S., 408 (36 L. Ed., 485), and in
Southern Railway Company v. Gray,
241 U. S., 333 (60 L. Ed., 1030). See, also,
Buckworth v. Grand Trunk Western Railway Co.,
127 Fed. Rep., 307 ;
N. Y., etc., R. Co. v. Kelley,
93 Fed. Rep., 745;
Smith v. R. R. Co.,
210 Fed Rep., 414. And so, when dealing with a Federal question, we must apply the common law as construed and administered in the United States courts.
Western Union Telegraph Co. v. Milling Co.,
218 U. S.,
406;
S. C. R. R. Co. v. Finan,
153 Ky., 340;
Sou. Ry. Co. v. Howerton,
105 N. E. (Ind.), 1026, opinion by
Justice Myers.
It seems to us, therefore, that, considering the special and peculiar facts of this case, the question is, as was said in Newport
News and M. W. Co. v. Howe, supra,
by
Justice Taft,
and in
Railway Co. v. Gray, supra,
by
Justice McReynolds,
whether the engineer had sufficient time after he actually discovered the dangerous situation of the intestate, by the exercise of due care, to have avoided the injury to the boy which resulted in his death. In the
Gray case, supra,
there was held to be no such evidence, but here we must hold, upon the testimony, that there was some under which the jury might reasonably have found, as a fact, that after the engineer first actually discovered the flagman’s peril, he had sufficient time with the means and appliances at his command to have brought his engine and cars under such control, as eventually to have stopped them, if it became necessary to meet the emergency, in that way, and save the flagman’s life. One of the witnesses, Mr. Norris, testified that he was on the top of the trestle at the time the intestate was tilled, about four hundred yards north of him. He heard the train blow before it came around the curve, and, looking up, saw the boy, and he appeared to be sitting on the right-hand rail and on the southbound track, with his elbows on his knees and his head in his hands. He did not'move although they
sounded the
whistle three or four times, which attracted Norris’ attention at the distance he was from the place. • The track was straight and up-grade for three or four hundred yards. The intestate had placed his torpedoes and they exploded with the usual noise when the train struck them. This and other evidence was sufficient for the jury to find that the intestate was sitting on one rail of the track with his elbows on his knees, his position indicating that he was asleep and unconscious of the approach of the train, and that this appeared to the engineer in time for him to take the proper measures to put his train under control and to stop it, if need be, to avoid killing the boy; and, again, the jury, when they have been apprised of all the facts — the defendant' having introduced no testimony — may conclude that the engineer had not sufficient time to act and save the boy after he first discovered, if he did discover, the true situation. The jury might even find, upon the facts as now disclosed, that the engineer had no such time, as was required for the purpose, to act prudently and save the boy, after he first saw him. But that does not signify that there is no evidence to the contrary. As the case now stands, there is evidence tending to establish either of the two contentions, and as reasonable men might differ in regard to it, the jury must decide the question.. The torpedoes exploded with the usual attendant and loud noise, and the engineer sounded the signals with the whistle which was calculated to warn one
not asleep or unconscious, but the-continued silence and stillness of the boy, he not haying moved or responded to them, was at least some notice to the engineer that he was unaware of his surroundings and the impending danger, as he still sat in deep, oblivious slumber.
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Walker, I.
We will assume in the discussion of this case, that D. S. Soles, the flagman, was guilty of contributory negligence in going to sleep upon the track, and thus exposing himself to grave peril, and which did result in his death. But this is not all of the case, as the question still remains to be decided, whether the engineer,
after he discovered the peril of the intestate,
had sufficient time, with the appliances at hand, by the exercise of due care, to prevent the injury. The rule of this Court is, in ordinary cases, that if by the exercise of due care he
could Lave discovered the peril of the intestate in time to have avoided the result, the defendant would be liable. But we are proceeding under the Federal statute, and must decide according to the Federal law, as expounded by its highest Court.
•The rule, under the law as applied by the Federal courts in cases of negligence, is that the defendant is liable, if it could have avoided the injury which, in this case, caused the death of the intestate, by the exercise of ordinary care, only after discovering his perilous situation.
Judge Taft,
referring to this principle in
Newport News and M. W. Co. v. Howe,
52 Fed. Rep., 362, used this pertinent language: “As applied to cases like the present, therefore, we believe the rule relied on by the counsel of plaintiff below should be construed to mean that the negligence of the plaintiff will be no defense, if the defendant,
after he hnew the peril of plaintiff,
did not use due care to avoid it.” And adverting to certain expressions of the Court relating to the same question in
Inland & Seaboard Coasting Co. v. Tolson,
139 U. S., 551, he said: “This would seem to show that, in the opinion of the Supreme Court of the United States, knowledge of plaintiff’s peril was required to make the rule applicable.” And in
Little Rock R. and E. Co. v. Billings,
173 Fed. Rep., 903,
Justices Van Devanter, Sanborn,
and
Pollock
thus state the rule of the Federal Court, applying it to a state of facts very much like those we have here: “As deduced from the foregoing authorities, and many others that might be cited, this qualification may be stated as follows: A., who by his own negligent act or conduct, has placed himself in a position of imminent peril, of which he is either unconscious or from which he is unable to extricate himself if conscious, may not be carelessly, recklessly, or wantonly injured by B., who, after he has discovered and knows the helpless and perilous condition of A., and has it within his power to avoid doing him an injury by the exercise of reasonable care and diligence in the use of such instrumentalities as he can command; and the failure to exercise such reasonable care and diligence on the part of B. under such. circumstances will constitute actionable negligence, rendering him liable in damages to A., notwithstanding the prior negligent act of A. in placing himself in position to receive the injury.” This rule was expressed substantially the same way in
Grand Trunk R. Co. v. Ives,
144 U. S., 408 (36 L. Ed., 485), and in
Southern Railway Company v. Gray,
241 U. S., 333 (60 L. Ed., 1030). See, also,
Buckworth v. Grand Trunk Western Railway Co.,
127 Fed. Rep., 307 ;
N. Y., etc., R. Co. v. Kelley,
93 Fed. Rep., 745;
Smith v. R. R. Co.,
210 Fed Rep., 414. And so, when dealing with a Federal question, we must apply the common law as construed and administered in the United States courts.
Western Union Telegraph Co. v. Milling Co.,
218 U. S.,
406;
S. C. R. R. Co. v. Finan,
153 Ky., 340;
Sou. Ry. Co. v. Howerton,
105 N. E. (Ind.), 1026, opinion by
Justice Myers.
It seems to us, therefore, that, considering the special and peculiar facts of this case, the question is, as was said in Newport
News and M. W. Co. v. Howe, supra,
by
Justice Taft,
and in
Railway Co. v. Gray, supra,
by
Justice McReynolds,
whether the engineer had sufficient time after he actually discovered the dangerous situation of the intestate, by the exercise of due care, to have avoided the injury to the boy which resulted in his death. In the
Gray case, supra,
there was held to be no such evidence, but here we must hold, upon the testimony, that there was some under which the jury might reasonably have found, as a fact, that after the engineer first actually discovered the flagman’s peril, he had sufficient time with the means and appliances at his command to have brought his engine and cars under such control, as eventually to have stopped them, if it became necessary to meet the emergency, in that way, and save the flagman’s life. One of the witnesses, Mr. Norris, testified that he was on the top of the trestle at the time the intestate was tilled, about four hundred yards north of him. He heard the train blow before it came around the curve, and, looking up, saw the boy, and he appeared to be sitting on the right-hand rail and on the southbound track, with his elbows on his knees and his head in his hands. He did not'move although they
sounded the
whistle three or four times, which attracted Norris’ attention at the distance he was from the place. • The track was straight and up-grade for three or four hundred yards. The intestate had placed his torpedoes and they exploded with the usual noise when the train struck them. This and other evidence was sufficient for the jury to find that the intestate was sitting on one rail of the track with his elbows on his knees, his position indicating that he was asleep and unconscious of the approach of the train, and that this appeared to the engineer in time for him to take the proper measures to put his train under control and to stop it, if need be, to avoid killing the boy; and, again, the jury, when they have been apprised of all the facts — the defendant' having introduced no testimony — may conclude that the engineer had not sufficient time to act and save the boy after he first discovered, if he did discover, the true situation. The jury might even find, upon the facts as now disclosed, that the engineer had no such time, as was required for the purpose, to act prudently and save the boy, after he first saw him. But that does not signify that there is no evidence to the contrary. As the case now stands, there is evidence tending to establish either of the two contentions, and as reasonable men might differ in regard to it, the jury must decide the question.. The torpedoes exploded with the usual attendant and loud noise, and the engineer sounded the signals with the whistle which was calculated to warn one
not asleep or unconscious, but the-continued silence and stillness of the boy, he not haying moved or responded to them, was at least some notice to the engineer that he was unaware of his surroundings and the impending danger, as he still sat in deep, oblivious slumber.
It may be, too, that the engineer did not actually see him in time to have stopped his train, if he found it necessary, but this must be decided upon the testimony, there being sufficient circumstances at present to show that he probably did see the boy asleep on the track, and not conscious of the train’s approach, at a time when he could have stopped his train by the exercise of ordinary care, if it was required to prevent injury to the boy. We repeat that the jury must find, in order to ■charge the defendant with liability for negligently killing the'boy, that the engineer did see the danger to the boy in time, by the exercise of ■ordinary care, to have saved him. This is the rule which is upheld in the Federal courts.
Two reasonable men might come to different conclusions upon the testimony as now developed, which makes the case one for the jury, whereas, when it is fully heard, it may, perhaps, be easily seen that there was no culpable negligence. It is not clear now that there was none, and while the evidence is not of a definite or entirely satisfactory, and certainly not of a conclusive, character, it would be difficult to say that there was absolutely none, or less than a scintilla of proof.
In this view of the case it is not imperatively required that we should consider at this time the other question raised by the plaintiff, and we will therefore leave it for future decision, when we are confronted by .such a necessity.
The nonsuit must be set aside and a new trial awarded.
New trial.