Per Curiam.
This action was brought in the circuit court of Shelby county to recover damages for an injury inflicted upon the defendant in error by plaintiff in error’s railroad train, of which Forsyth was engineer, in the State of Mississippi. There was a demurrer, and judgment in the court below for $2,500, from which the plaintiff in error appealed to the court of civil appeals, and there the judgment was affirmed. A petition has been filed by the plaintiff in error in this court for the writ of certi-orari to bring the case here for trial.
We have examined the case with care, and are convinced that both the circuit court and the court of civil appeals committed error, and the judgment rendered by each of them must be reversed.
[131] Only one witness testified, the defendant in error himself. He says that he had left Memphis on the previous night about 7:30 on one of plaintiff in error’s trains, and had, with the train, reached, about daylight, or nearly daylight, a station known as Plantersville, in the State of Mississippi. There the train stopped for the purpose of meeting the north bound passenger train. He testified that his train was under orders to wait at that point for the passenger train, and that he was ordered by the conductor to go forward and notify 'the passenger train that the freight train was so heavy that it could not go in on the side track, which was downgrade, with any expectation of getting out again, and therefore that the passenger train must take the siding; that his duty under these orders was to go down with his red light, and his white light, and with torpedoes, and after lining up the switch, to place the torpedoes upon the track, and then retire further up the track, and, when he saw the passenger train coming, to signal to it with his red light, and then with his white light, and when the train should be stopped, he was to go down and get on the engine, and let the engineer know what he was to do; that is, to go in upon the siding-. He testified that he did line up the switch, and went some ten or twelve telegraph poles down the track, and put out his torpedoes, and came back two or three telegraph poles to the switch, and set his red light and white light on the track. He says then: “I didn’t feel sleepy. I sat on the end of the cross-ties and went to [132] ■whittling with my knife, about fifteen or twenty feet behind by lantern, and I dropped off to sleep, and that’s the last I remember. ... I was down on the end of the cross-ties, looking up the track the way the train was coming. . . . The next thing I remember after that, my arm was mashed up. Q. Where were you? A. I was at Plantersville. Q. Did anybody have you at the time you waked up? A. Mr. Forsyth had hold of me on one side, and I don’t know who the other fellow was — a passenger off the train. Q. Is that the first you remember, some men had you? • A. Yes, sir. Q. What time, about, was it that these men had you there, and your arm was cut off, and you Avaked up? A. I don’t know the exact hour, but just about sunrise, I suppose.” Cross-examination: “You sat down on the tie? A. Yes, sir. Q. How did your arm happen to get run over ? A. Hoav did it happen to get run over? Q. Yes. A. I don’t know, sir. All I know the engine run over it. I was setting dOAvn on the end of the tie with my head on my hand, and before I knew anything it was mashed. Q. You were on the north side of the track? A. On the north side of the track.”
This was all of the evidence upon the subject of how the accident occurred. There was a motion entered in the court below for a peremptory instruction in favor of the defendant. We think it should have been granted. It is impossible to say from this evidence, or to conjecture, Avhen the defendant in error’s arm fell upon the track. It may have been lying upon the track some[133] time before the passenger train approached, or it may have fallen across the track immediately in front of the passenger train, too late for the engineer to see it, or to do anything towards preventing the accident. It does not appear that the defendant in error’s body was close enough to the train to be struck; only his arm was crushed. As stated, it is impossible to say from this evidence that the employees on the passenger train were guilty of any sort of negligence. It was not incumbent upon the railway company to introduce evidence to show anything upon the subject since the defendant below stopped short of making a case. Therefore no presumption of fact could arise from the failure of the engineer to testify, or from the failure of any employees to testify.
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Per Curiam.
This action was brought in the circuit court of Shelby county to recover damages for an injury inflicted upon the defendant in error by plaintiff in error’s railroad train, of which Forsyth was engineer, in the State of Mississippi. There was a demurrer, and judgment in the court below for $2,500, from which the plaintiff in error appealed to the court of civil appeals, and there the judgment was affirmed. A petition has been filed by the plaintiff in error in this court for the writ of certi-orari to bring the case here for trial.
We have examined the case with care, and are convinced that both the circuit court and the court of civil appeals committed error, and the judgment rendered by each of them must be reversed.
[131] Only one witness testified, the defendant in error himself. He says that he had left Memphis on the previous night about 7:30 on one of plaintiff in error’s trains, and had, with the train, reached, about daylight, or nearly daylight, a station known as Plantersville, in the State of Mississippi. There the train stopped for the purpose of meeting the north bound passenger train. He testified that his train was under orders to wait at that point for the passenger train, and that he was ordered by the conductor to go forward and notify 'the passenger train that the freight train was so heavy that it could not go in on the side track, which was downgrade, with any expectation of getting out again, and therefore that the passenger train must take the siding; that his duty under these orders was to go down with his red light, and his white light, and with torpedoes, and after lining up the switch, to place the torpedoes upon the track, and then retire further up the track, and, when he saw the passenger train coming, to signal to it with his red light, and then with his white light, and when the train should be stopped, he was to go down and get on the engine, and let the engineer know what he was to do; that is, to go in upon the siding-. He testified that he did line up the switch, and went some ten or twelve telegraph poles down the track, and put out his torpedoes, and came back two or three telegraph poles to the switch, and set his red light and white light on the track. He says then: “I didn’t feel sleepy. I sat on the end of the cross-ties and went to [132] ■whittling with my knife, about fifteen or twenty feet behind by lantern, and I dropped off to sleep, and that’s the last I remember. ... I was down on the end of the cross-ties, looking up the track the way the train was coming. . . . The next thing I remember after that, my arm was mashed up. Q. Where were you? A. I was at Plantersville. Q. Did anybody have you at the time you waked up? A. Mr. Forsyth had hold of me on one side, and I don’t know who the other fellow was — a passenger off the train. Q. Is that the first you remember, some men had you? • A. Yes, sir. Q. What time, about, was it that these men had you there, and your arm was cut off, and you Avaked up? A. I don’t know the exact hour, but just about sunrise, I suppose.” Cross-examination: “You sat down on the tie? A. Yes, sir. Q. How did your arm happen to get run over ? A. Hoav did it happen to get run over? Q. Yes. A. I don’t know, sir. All I know the engine run over it. I was setting dOAvn on the end of the tie with my head on my hand, and before I knew anything it was mashed. Q. You were on the north side of the track? A. On the north side of the track.”
This was all of the evidence upon the subject of how the accident occurred. There was a motion entered in the court below for a peremptory instruction in favor of the defendant. We think it should have been granted. It is impossible to say from this evidence, or to conjecture, Avhen the defendant in error’s arm fell upon the track. It may have been lying upon the track some[133] time before the passenger train approached, or it may have fallen across the track immediately in front of the passenger train, too late for the engineer to see it, or to do anything towards preventing the accident. It does not appear that the defendant in error’s body was close enough to the train to be struck; only his arm was crushed. As stated, it is impossible to say from this evidence that the employees on the passenger train were guilty of any sort of negligence. It was not incumbent upon the railway company to introduce evidence to show anything upon the subject since the defendant below stopped short of making a case. Therefore no presumption of fact could arise from the failure of the engineer to testify, or from the failure of any employees to testify.
In addition to the view just stated, if we could assume from this evidence that the defendant in error had his arm lying upon the track at the time, and before, the passenger train approached, still he would not be entitled to recover. There is no averment, or proof of the existence of any statute in Mississippi, similar to our statute, upon the subject of obstructions upon railroad tracks. Our cases, however, hold that the statutory provisions above referred to are but declaratory of common-law duties, except in respect of the burden of proof and the absolute liability imposed for failure to use the precautions referred to. Railroad v. Wilson, 90 Tenn., 274, 275, 16 S. W., 613, 13 L. R. A., 364, 25 Am. St. Rep., 693; Railroad v. Fleming, 14 Lea, 139; Rail[134] road v. Humphreys, 12 Lea, 206; Chattanooga Rapid Transit Co. v. Walton, 105 Tenn., 416, 422, 423, 58 S. W., 737; Patton v. Railroad, 89 Tenn., 370, 377, 378, 15 S. W., 919, 12 L. R. A., 184; Railroad v. Pratt, 85 Tenn., 9, 13, 14, 15, 1 S. W., 618; Railroad v. Connor, 9 Heisk., 19, 21, 22, 23; Burke v. Railroad, 7 Heisk., 451, 463, 19 Am. Rep., 618; Railroad v. Smith, 6 Heisk., 174, 176; Railroad v. Fugett, 3 Cold., 402, 404; Horne v. Railroad Co., 1 Cold., 72, 74-76. But it is also held that these requirements do not apply to the employees of the railroad company upon its track in the discharge of their duties. Railroad v. Holland, 117 Tenn., 257, 96 S. W., 758; Taylor v. Railroad Co., 93 Tenn., 305, 27 S. W., 663; Railroad v. Hicks, 89 Tenn., 301, 17 S. W., 1036; Railroad v. Rush, 15 Lea, 145; Railroad v. Robertson, 9 Heisk., 276; Haley v. M. & O. Railroad, 7 Baxt., 239; Railroad v. Burke, 6 Cold., 45. It has been specifically held that they do not apply to the case of a brakeman, who, while under the duty to go forward and flag an expected train, after setting his white and red lights upon the track, sits down upon the end of a cross-tie and goes to sleep in such a position as to be struck by the train Avhich he was sent out to warn. Railroad v. Rush, supra. It is the duty of an employee haying such commission to discharge to look and listen continuously so long as he is upon the track, and his failure to do so would constitute such contributory negligence on his part as would defeat his action for any negligence of the crew of the approaching train, unless they saw him on [135] the track, and. could have prevented the accident, and failed to do so. Taylor v. Railroad, supra; Railroad v. Hicks, supra. These principles are applicable under the common law. The servants of the railroad company in the conduct of an approaching train have the right to assume that a brakeman sent out to warn and signal the train will not go to sleep upon the track, but, on the contrary, that he will be alert and watchful in the discharge of his duties. However, if he should fall asleep upon the track, or negligently sit so near the track as to be within the sweep of the passing train, and. there go to sleep, it would be the duty of the company’s servant’s upon the advancing train to make every effort in their power to stop the train and prevent the accident, if they should discover his peril. An injury inflicted after such discovery would be wanton and inexcusable. When an employee, however, sent out to warn and stop an expected train, so far forgets his duty as to go to sleep upon the track, he cannot justly complain that the servants of the company on the train referred to were also negligent in failing to keep a proper lookout. He is bound to know that no one upon the approaching train could contemplate him as having abandoned his duty, and exposed himself to imminent and known danger by going to sleep upon the track, or so near it as to be struck by the train. We do not think this case is one for the application of what is called the “last clear chance doctrine,” discussed in the opinion of the court [136] of civil appeals, and we . express no opinion upon tbe merits of that doctrine.
We bave not in tbis case applied tbe rule applicable to tbe negligence of fellow servants, since tbe declaration pleads and relies upon a statute of tbe State of Mississippi, where tbe accident occurred, wbicb relieves tbe defendant in error of tbe disabilities arising out of sucb relation.
On tbe ground stated, tbe judgment of tbe circuit court and of tbe court of civil appeals must be reversed, and tbe suit dismissed, with tbe costs of tbis court and of tbe court below.