PHILIPS, District
This is an action by the administratrix of John I. Springer to recover damages for personal injury to him, resulting in his death, alleged to have been occasioned by the negligence of the defendant railway company. About 2 o’clock p. m. February 13, 1907, a fire broke out in an addition to the city of Pine Bluff, Ark. It was of such character as to destroy nearly 100 houses and drive the inhabitants into the streets and southward onto the railroad tracks of the -defendant. Immediately on the south side of this addition, extending along three blocks, were the switchyards of the defendant, running east and west. There was a network of perhaps 12 tracks used exclusively by the railroad for storing and switching its cars. There were no street or road crossings over said tracks. The fire originated in a lot in the westernmost block, bordering on the western end of the switchyard. The fire spread eastward and northeast.
While the evidence tended to show that there were some facilities for the people to pass out to the west, and to the northeast to the ground, known as the “shop property,” where the railroad and other shops were located, the readiest mode of escape for the people from the fire area and to carry out their household goods and effects was onto and over the said railroad tracks. Naturally enough, there was intense excitement among the people, hurrying and struggling to save their exposed personal property, which they undertook to accomplish by carrying and tumbling the household goods wherever they could find a place between the net work of railroad tracks. When the fire began to extend eastward, there were cars of various kinds on the tracks next to the lots where the fire raged. Within the first 45 minutes of the fire the danger to the cars became apparent, and the employes of the company had removed from the west' to the east the cars off of the first five northernmost tracks. On the sixth track there then stood a train of freight cars, at one point in which the cars were! broken, with a space between them of four or five feet. Some of the people, in carrying their household effects to the south, would climb through this train over the drawheads, and others began to pass through the said narrow passageway where the cars stood apart. About this time the yard master or foreman discovered that the oil tanks on the cars to the west side’ of said cut off were becoming so hot from the heat of the fire the^r began to smoke. To save the company’s property, as well as to prevent a not improbable explosion, augmenting the impending danger to property and the lives of people within its range, the superintendent gave direction to the crew to move said train to the east out of danger. To effect this the engine was carried to the west end of the train, facing east, to push it eastward.
Springer did not live in said addition, and had no property interests there to look after. The plaintiff's witness Frazier was indulged to testify that Mr. Peck, division superintendent of the defendant, told him:
“That he hacl had the shops closed down and ordered the men to come down and help save the stuff. He told me to keep them as long as they could do any good. The shopmen were at the fire. They carried my goods out of the [803]*803honse; but the goods were burned up in the street. Most of the goods were carried over, then, in the railroad yards.”
To say nothing of this being mere hearsay testimony, there is nothing in the record to show that Springer was in the employ of the defendant. The only testimony touching this matter is that of the widow of the deceased, who said:
“He [Springer] was employed by the Cotton Belt Railway Company as a scratch boss in the mill; that is, he marked the timber to be dressed.”
His immediate foreman, Wheelan, testified:
“I was foreman in the mill department of the shops, and Springer worked under me. The men were not ordered to quit work and go to the lire. They kept dropping out and going. Springer was familiar with the yards. I do not know that Springer had gone to the lire. I went to the fire after all the men had gone. I did. not tell them not to go.”
After he reached the vicinity of the fire, witness Peebles testified that he (Peebles) had been carrying goods out of a house, and, when he went out to the railroad tracks and discovered that some goods were taking fire, he saw Springer and said to him, “Pet’s try to save some of the stuff;” that they carried a dresser through said opening, then returned and picked up a mattress, and while Springer was attempting to pass through the opening with it he was caught and crushed between the cars.
The negligent liability of the defendant railroad for this accident is charged in two counts of the petition. The substance of the first count is that, while the people and Springer were fleeing with portions of their goods across said tracks, “the defendant, without exercising ordinary care and caution, and without keeping a constant lookout for persons upon its tracks, negligently, recklessly, and wantonly, by its agents and employes, with a locomotive steam engine pushed certain cars then and there standing on its said tracks, which said Springer and others were passing, causing them with great force to come together, catching said deceased,” etc. The second count, after setting out the preliminary facts, charges that:
“The defendant, without exercising ordinary care and caution, and without keeping a constant lookout for persons upon its tracks, negligently, recklessly, and wantonly, by its agents and employes, with a locomotive steam engine, negligently, wantonly, and violently pushed certain cars then and there standing on its tracks, and which cars were at the time about four or five foot apart, and between which said John I. Springer and others wree passing, causing them wifh great force to come together, catching- said deceased.”
The answer, after setting out the facts occasioning the movement of said cars, alleged contributory negligence of the deceased. At the conclusion of the evidence the court directed a verdict for the defendant.
Much reliance is placed by plaintiff’s counsel upon the following statute of Arkansas (Kirby’s Dig. § 660'?'):
“It is the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the tracks of any and all railroads, and if any persons or property shall be killed or injured by the neglect of any employes of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and re[804]*804sponsible to the person injured for all damages resulting from the neglect to keep such lookout, and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed.”
It is held by the Supreme Court of that state that this statute applies as well to the running of trains in railroad yards as elsewhere. Railway v. McQueeney, 78 Ark. 28, 92 S. W. 1120; Railway v. Graham, 102 S. W. 700. On its face this statute only creates the liability of a railroad when the injury or death results from neglect, which consists in failing to keep a constant lookout for persons upon its track. Dike any other act of negligence, which is always a relative term, the degree of vigilance is measured by the surrounding circumstances.
The chief insistence of plaintiff’s counsel is that under the special circumstances, when the employés in charge of the movement of the engine and cars knew that a multitude of people were thronging about the track on which the movement was proposed to be made, it was a wanton act to undertake it without taking such affirmative measures of precaution as would certainly have assured them that no person would be on the track. This extreme proposition cannot rest alone upon the terms of said statute. The only requirement it imposes is that the persons running the train should “keep a constant lookout for persons upon the track.” Applied in a practical way, the lawmakers evidently had in mind the probability that persons, whether rightfully or wrongfully, might get upon railroad tracks, and therefore, out of consideration for their lives and limbs, they required those running trains to keep a constant lookout for such possibilities, and thereby avoid, as near as might be, injuring them. When, however, the conductor, engineer, and fireman, while the train is running, keep such lookout, they discharge the duty -imposed by this statute, and no liability would attach to the railroad for striking and injuring the person upon its track in so far as the statute itself is concerned. This, it seems to us, must be conceded.
In this respect the testimony of the engineer and the fireman in charge of the engine was that from their respective sides of the cab each kept a sharp lookout ahead, and they had no knowledge that the .plaintiff had gone between the cars, although they knew that many people were about the train and had been passing through the same. It therefore devolved upon the plaintiff to show something more to inculpate the defendant company. On the cross-examination of the engineer (Dillon) he was indulged to state what he said to the switchman who gave him the order to move the train, which was to the effect that it was dangerous, as they were liable to kill some-» body, and that he was loath to make the movement. It was inadmissible to bind the defendant by this free expression of opinion by the engineer. Being admitted, it evidenced only the sense of the danger of moving the cars at the time and place, and the necessity in executing the order of exercising due care.
The law has equal regard for the rights of the railroad company, and its conduct -in the matter of precaution must be compared with that of Springer’s. The right of self-preservation and protection in the eye of the law is accorded to the corporate entity, which but [805]*805represents the aggregate stockholders, as well as to the individual. The cars stood upon a track dedicated to the exclusive use of the railroad company. There was no public highway over this ground, and the public had no right to appropriate it to a private use. When the property of the railroad company became exposed to imminent danger of destruction, from the proximity of the fire, it had the unquestioned right to the immediate use of its track, in its private yards, for the extrication of its cars. The emergency admitted of no delay. When the yard master or overseer discovered that the oil tanks were beginning to smoke from the heat of the fire, a delay of a few minutes might have been attended with disastrous results, not only to the cars of the railroad, but to the lives of hundreds of people and their goods thronging and scattered close to the cars. The lack of energetic and prompt action on the part of the employes to rescue the cars might have rendered the company liable for other and greater damages.
Under such conditions, what duty did the law impose upon the railroad toward the man Springer, before it could move its own property on and over its own right of way? He was not on the defendant’s track and right of way by authority, or even as a licensee from the defendant. The employes had not seen him, and did not know that he was there, or that he contemplated passing between the cars. As a general precaution, taken by the railroad, the evidence shows the fallowing facts: Woody, a switchman, who worked in the field, testified :
“Before tlie engine came to tlie cars, I was getting people out of tlie way from the engine and ears. I saw a lot of people jumping through the cars over the drawbars, and I wanted to keep any more from going through. The engine coupled on and no more people were jumping through the cars. I hollered to the people to stand back, so that I could see down the line we were shoving, and a lot of people got back. I gave the signal to the engineer to come ahead. I saw there was an opening down there about five feet in the cars, and I went down that way to catch the coupling; but before T got there the cars came together, and somebody said a man was killed, and T gave the signal to stop. * * * Another switchman, Robert Searles, was between me and the engine. We hollered to the people at the time to got out of the way, and they all stood back. 1 did not see a man between the cars. We were acting under the foreman’s orders to move the cars to keep them from burning.”
He further states that they did not see anybody carrying goods through the opening, but the people he was hallooing at were going over the drawheads; but he saw others stopping people from going through the opening. Both citizens and employes were assisting him in keeping the people hack. “I hollered to the people in a high pitch.”
McKay, another switchman, testified that:
“Just prior to the accident I walked to the car where he [Springer! went through and opened the knuckle and then walked about two car lengths to the east. I saw the engine coming, and wanted to get on the other side. So I went through on the north side, and there was quite a number of fellows running back and forth through there. I said: ‘You had better look out; there is an engine coming against that ear.’ As, I said this I met another bunch and said the same thing, and I y alked east about two car lengths on the north side of the car.”
[806]*806The other switchman, Searles, testified as follows:
“We coupled to the west string and I was told to wait until the other switchman walked up to the opening. I was midway to the first car and the engine. Woody was the other switchman. AVe waited for him to go to the opening. He gave me the signal to move ahead, and I gave it to the engineer.”
There was no contradiction of this evidence. In addition to this, the bell on the engine, as it was moving on to the west end of the train, was ringing and continued to ring as the movement of the cars began. Several witnesses, outside of the employes, heard the bell and took notice. But, says counsel for the plaintiff, the switchman should have stood at the small opening and continued to cry out for the benefit of Springer, as if he was then blind and. deaf, and the railroad company owed him some especial duty. As people had been climbing through the cars throughout the length of the train, the switchmen had also to see to that incident. As the people in the vicinity took heed of his warning and gave way, he had the right to assume that their attention would be given to the movement of the cars, while he went along the line to keep other people from attempting to pass through over the drawheads.
If, however, it should be conceded that under such state of facts a jury might be permitted to say that the company fell short of the full measure of its duty toward Springer, what can be said in extenuation of his conduct? Did he even approximate the performance of the duty the law laid upon him? If he had home, or family, or property involved in that conflagration, from a sentimental viewpoint his conduct might invite some considerate indulgence. The law is not builded. on sentiment or emotion. It deals with the practical relations of men as members of the social compact — with checks and mutual obligations, which experience has crystallized into generally recognized custom, or has taken the form of positive statute. Springer had no business to take him upon the defendant’s right of way. He had gone to the vicinity of the fire from impulse, if not curiosity. It is a reasonable inference that, as the mattress which Peebles and Springer were carrying was between them, Springer went in between the cars without stopping or looking or paying any heed to anything else than the mattress, as it fell to the north side of the cars.
• What were the open, visible facts about that yard just preceding this accident? Within the preceding 45 minutes of the raging of the fire the railroad men had been running an engine up and down until they had cleared five of the tracks. The plaintiff’s witness Schnable, testified that:
“The company was switching with a couple of engines up and down those tracks, and paid no attention to the people trying to save their goods. * * * Cars and switch engines were moving on the tracks. In their excitement, people did not realize their danger. * * * Switching was done on the track ‘south of the main line.”
If this is so, the “switching with a couple of engines up and down these tracks” was additional warning to Springer that it indicated a movement of the train, which was exposed after the train north of it had been pulled away, at any moment. The presumption Avas that [807]*807there could he no other purpose in running an engine over the cleared tracks than to pull out this train. Several witnesses testified to seeing the engine, and hearing its bell, that hitched to the train on track 6, and heeded the warning. The fact that no other person than Springer was injured hut accentuates his heedlessness.
Within that time Springer had learned of the fire while in his shop to the east of the town. Judging from the diagram in the record, the distance of that shop from where the accident occurred was about four blocks. It is incredible that Springer sho.uld not have observed the preceding movement of the engine and the cars. More than that, just before the engine moved to push the train of cars in question, the brakemau passed through this opening to adjust the knuckle, which was an act to indicate preparation for movement. The switch-man gave the warning, which the people in the vicinity heard and stepped backward. If Springer did not see or hear these things, the further evidence is that the engine was moving at the west end of the train, with the bell ringing, which continued' during the movement of the cars. Other people heard this signal and saw the engine in motion, which was in full view and only a short distance away. More significant still of his recklessness, the witness Barhler testified:
“I knew Mr Springer, and saw him just before he was killed. lie was carrying furniture away from the fire. We were right near the opening between the ears on track 5. We had hold of a mattress and carried it up to the opening, and told him it was dangerous to go through, and he dropped it and went on and got something else. I went away and didn’t see him any more. This was eight or ten minutes before the accident.”
We discover no evidence of internal improbability of the truth of this statement, nor any external facts which a disingenuous and disinterested mind should regard as casting any reasonable doubt on its veracity. The imputed conflict between liis statement and that of Peebles is rather seeming than real. The expression, “We had hold of a mattress, and carried it up there to an opening, and told him it was dangerous to go through, and he dropped it and went on and got something else,” does not conflict with Peebles’ statement, as Springer, before Peebles spoke to him, may have been engaged in like work.
Realizing the force of all this evidence, counsel for the plaintiff suggests that, in the absence of direct proof to the contrary, the presumption should be indulged that Springer heeded the warning and did listen and look before attempting to pass through the cars. There are two complete answers to this:
(1) The witness Bobbitt testified, without contradiction:
“I had been leaning against one of tlie cars just before the accident I saw the engine coming and moved away. I saw Sprjuger go between the cars, carrying some household goods. He was going straight ahead looking south without looking east or west. If he had looked, ho could have seen the engine coming. There was nothing to obstruct his view.”
He did not see Springer hurt, or notice some women near the opening. We do not perceive any ground for discrediting his statement, simply because he did not see and identify a lot of other people who chanced to be in that throng.
[808]*808■ (2) The law declares that, under the surrounding conditions, Springer did not look and listen, or that he did not heed the warnings, as he could not have listened without hearing the bell, and he could not have looked without seeing the engine moving, as it was in full view, only a short distance away. Northern Pac. R. Co. v. Freeman, 174 U. S. 380, 384, loc. cit, 19 Sup. Ct. 763, 43 L. Ed. 1014; Hayden v. M., K. & T. Ry. Co., 124 Mo. 573, loc. cit., 28 S. W. 74; Railway Co. v. Andrews, 130 Fed. 67-71, 64 C. C. A. 399; Rollins v. Railway Co., 139 Fed. 639, 71 C. C. A. 615; Railroad Co. v. Chapman, 140 Fed. 129, 71 C. C. A. 523; Rich v. Railway Co., 149 Fed. 79, 78 C. C. A. 663.
In Pittsburg, etc., R. Co. v. West, 34 Ind. App. 95, 69 N. E. 1017, the court said:
“The presumption arises that a traveler approaching and about to cross the railroad track saw whatever was iu the range of Ins vision had he looked, or heard whatever he might have heard had lie listened.”
'There is nothing in the Arkansas statute, hereinbefore quoted, which in any degree exempted Springer from the consequences of his own heedlessness, without which the accident would not have happened. The Supreme Court of Arkansas has repeated^ and persistently said that the rule of application to any person when entering upon the tracks of the railroad company to keep a lookout for his own safety is too deeply rooted to tolerate debate. “The true rule, which no amount of amplification can simplify, is that, whenever the negligence of the plaintiff contributes proximately to cause the injury of which he complains, the defendant is not liable.” Johnson v. Stewart, 62 Ark. 164-170, 34 S. W. 889; Railway Company v. Leathers, 62 Ark. 235, 35 S. W. 216; Railway Company v. Dingman, 62 Ark. 245, 35 S. W. 219; Burns v. Railway Co., 76 Ark. 10, 88 S. W. 824; Barry v. Railway Company, 77 Ark. 401, 91 S. W. 748. See, also, Adams v. Railway Co., 83 Ark. 300, 103 S. W. 725. This principle has been so repeatedly applied to cases in pari materia in this jurisdiction that to reverse this case would tend to unsettle the rule. Mo. Pac. Ry. Co. v. Moseley, 57 Fed. 921, 6 C. C. A. 641; Crookston Lumber Co. v. Boutin, 149 Fed. 680, 79 C. C. A. 368; Davis v. C., R. I. & P. Ry. Co., 159 Fed. 10, decided at the September term, 1907. This rule is aptly stated in’ Carlson v. Railway, 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 Am. St Rep. 655, as follows:
“The duty of exercising caution in attempting to cross a railway track, a place of known danger, is not relaxed by the opportunity or occasion for theorizing or difference of opinion as to whether a train is or is not likely to pass. Observation, not logic, is the proper precaution.” Guhl v. Whitcomb, 109 Wis. 69-85, 85 N. W. 142, 83 Am. St. Rep. 889.
Some reliance is placed by counsel for plaintiff upon the case of Railway v. Cain (Ark.) 104 S. W. 533. Persons were passing in front of cars standing on the side tracks, when other cars were “shunted” against the standing cars, which sent them forward so as to injure the plaintiff. Because of the fact that there was evidence to show that the brakeman at or near the end of the moving cars saw the [809]*809plaintiff and his companions as they were about to cross the track behind the standing cars, and observed their movements, it was held that the case should go to the jury. Especially so, when the testimony tended to show that the brakeman, after he had observed the parties going upon the track, by calling their attention to the moving cars, could have warned the plaintiff of the danger. The court said:
“Tlie most serious question is whether the jury were warranted in finding that the brakeman knew or had reason to know that the plaintiff did not see the moving- ears, and was, therefore, oblivious of his peril; for, unless the brakeman discovered the fact that the plaintiff was oblivious of the danger, he had the right to act upon the assumption that the latter would not expose himself to it by going upon the track. It is not a question whether the brakemen could have discovered the plaintiff's peril in time to have avoided it, but whether he did discover it.”
The case is rather authority for the proposition that, if the party was injured where he had no right to be, there was no responsibility for the accident on the part of the railroad company, unless it discovered his peril in time to have avoided the injury. Under the facts and circumstances of the case at bar, we-have no need to controvert the ruling of courts respecting the responsibility of railroad companies for injuring persons under conditions where the conduct of the employes amounts to an implied invitation to persons to undertake to pass over crossings where the cars stand separated, without exercising a proper degree of care when suddenly closing up the space. It will be found, on careful analysis of the cases, that the responsibility of the railroad company is conditioned, “unless he [the injured person] contributed to it by his own negligence,” or some equivalent expression.
The narrowness of the space, four or five feet, between the cars, where the injury in question occurred, indicates that it was not intended as a passway for carrying through it furniture and household goods; otherwise, it would have been left wider. Clearly, it was made before the fire originated, as the engine did not come to track 6 until after the cars were removed from the first five tracks. As it was not a public crossing, where the public had a right to cross, and, therefore, might reasonably assume that the railroad left the opening for public accommodation, and inasmuch as the small opening was there prior to the fire, it cannot even plausibly be asserted that the railroad company should be held to have apparently invited the public to use it. Springer had no right to be where he was injured. He was uninvited by the railroad to be there. Under extreme exigency the railroad was using its own track in its private yards to save its own property from imminent peril. Under such conditions it owed such an intruder as Springer no other obligation than not to wantonly run him down. The effort made by the employés to see that the track was cleared, together with the open movement of the engine and the ringing of the bell, contradict any imputation of recklessness or wantonness on the part of the defendant.
The trial judge saw and heard all the witnesses. He was familiar' with the physical facts of the place. His judgment on the undisputed' facts, in our opinion, should be affirmed. It is so ordered.