Co., 18 N. D. 367, 121 N. W. 830; Cameron | at the crossing and could have been heard by v. Railway Co., 8 N. D. 134, 77 N. W. 1016.

the deceased. It is shown that a strong wind was blowing; and it is sought to be proved by the plaintiff that the hackman was almost run into by an engine without hearing any gong sounded. All of this evidence was admissible as tending to show the physical facts attending the accident. Not merely was this evidence admissible on the question of contributory negligence and as to whether the deceased could have seen and heard the engine in the storm or not, but for the purpose of arriving at the real cause of the accident. There were no eyewitnesses to the

[5] There is also, and above all, a duty on the part of the railway company to keep a proper lookout at a highway crossing, especially within the limits of cities. Coulter v. Railway Co., 5 N. D. 568, 67 N. W. 1046; Bishop v. Railway Co., 4 N. D. 536, 62 N. W. 605; St. Louis & So. Ry. Co. v. Dingman, 62 Ark. 245, 35 S. W. 219. The engineer of the switch engine, which, as we view the evidence, must have occasioned the death of the deceased, or which, at any rate, was running up and down the track all night long and repeatedly crossed the cross-accident, and proof of this nature is the only ing in question at and about the time when the accident must have occurred, testified that he knew nothing about the facts of the case at all and did not know that the deceased had been run over until informed by some one else, some hour or so after the accident. The case, in our mind, was one for the jury to pass upon. Kunkel v. Soo Ry. Co., 18 N. D. 367, 121 N. W. 830; Anderson v. Soo Ry. Co., 18 N. D. 463, 123 N. W. 281; St. Louis, etc., Ry. Co. v. Dingman, 62 Ark. 245, 35 S. W. 219. If the accident had taken place between highway crossings, and upon the open prairie, where there was no absolute duty to ring a bell or to keep a proper lookout, and where the deceased would probably have been a trespasser, the case might have been different.

[6] But counsel for defendant and appellant argues that improper evidence was admitted, and that much of the evidence which is urged in support of the verdict was inadmissible. He objected, and still objects, strenuously to the introduction of the testimony of the hackman, Chapin, to the effect that at some time and about 10 o'clock he saw a switch engine upon the track at the crossing without a tail light; that this engine almost ran into him; and that he heard no bell or gong sounded. It is urged, in short, that proof of prior negligence cannot be had in support of an allegation of negligence at a particular time. We must remember, however, that in the case at bar practically all the evidence is, or should be, in the possession of the defendant. The victim of the accident is dead. The evidence is to us conclusive that he was run over by a switch engine belonging to the defendant company. The question to be decided was not merely whether the defendant failed to ring a bell at the crossing at the time of the accident or whether it had a tail light upon its engine, but what was the cause of the accident, and was there evidence to overcome the presumption of due care on the part of the deceased? It was claimed that the deceased could see the engine at a distance of 150 to 200 feet. The hackman was allowed to testify that he almost ran upon an engine without seeing it. It was claimed

proof that could be adduced unless the defendant himself chose to furnish better evidence. This is not a case where negligent acts on other parts of the road or on other occasions, or committed by other engineers than those involved in the accident, are concerned, but a case in which the acts and conduct of the engineers and servants and the physical equipment of the engine engaged in the same general switching transaction in which the injury occurred is involved. We think the evidence was admissible. See City of Chicago v. Powers, 42 Ill. 169, 89 Am. Dec. 418; Rich v. Chicago, M. & St. P. Ry. Co., 149 Fed. 79, 78 C. C. A. 663; N. P. Ry. Co. v. Lewis et al., 51 Fed. 658, 2 C. C. A. 446; Grand Trunk Ry. Co. v. Richardson et al., 91 U. S. 454, 23 L. Ed. 362; Cotner v. St. Louis Ry. Co., 220 Mo. 284, 119 S. W. 610; Woodward v. Southern Ry. Co., 90 S. C. 262, 73 S. E. 79; State v. Railroad, 52 N. H. 528, 548; Davidson v. St. P. Ry. Co., 34 Minn. 51, 24 N. W. 324; Swadely v. Mo. Pac. Ry. Co., 118 Mo. 268, 24 S. W. 140, 40 Am. St. Rep. 366; City of Aurora v. Brown, 12 Ill. App. 122, affirmed 109 Ill. 165; Goodwin v. Atlantic Coast Line Ry. Co., 82 S. C. 321, 64 S. E. 242; Lannis v. Louisville Ry. Co., 16 Ky. Law Rep. 446; Field v. N. Y. Cent. Ry. Co., 32 N. Y. 339; Pa. Tel. Co. v. Varnau (Pa.) 15 Atl. 624; Quinlan v. City of Utica, 11 Hun (N. Y.) 217; Presby v. Grand Trunk Ry. Co., 66 N. H. 615, 22 Atl. 554; Galveston, H. & S. A. Ry. Co. v. Kutac, 76 Tex. 473, 13 S. W. 327; Bourassa v. Grand Trunk Ry. Co., 75 N. H. 359, 74 Atl. 590.

[7] We now come to the proof of the damages. Appellant insists that, since no mortality tables were introduced, there is no proof of the expectancy of life either of the deceased or of his relatives. As we understand the law, and as held by this court in the case of Ruehl v. Lidgerwood Rural Tel. Co., 135 N. W. 793, the admission in evidence of such tables is not necessary to a recovery of substantial damages. According to the common law, standard tables were competent and proper evidence, but they were not absolutely necessary. Under section 7303 of the Code of North Dakota, the

The judgment of the district court is affirmed.

SPALDING, C. J.

mission is not necessary. We have dis- | Co., 19 N. D. 38, 121 N. W. 70, that a legal cussed this question at some length in the obligation to support is not necessary to a case of Ruehl v. Telephone Co., before re-recovery in such cases. The evidence shows ferred to, and we believe that no extended that the boy's earning capacity was about $4 discussion is necessary here. We know that a day; that he was in business with his counsel for the appellant makes a distinction father; and that he and his father made no between a case where the expectancy of the division of the profits, but turned all of life of the deceased and the expectancy of their earnings into the family fund. The the life of the beneficiary are concerned, but evidence shows that the father was 53 years we can find no such distinction in the au- of age, and we must infer that the mother thorities. We have examined the cases cit- was at least 46. There was a girl of 15 ed by appellant, and the case of Rhoads v. years of age, and a boy of about 19. The Chicago, etc., Ry. Co., 227 Ill. 328, 81 N. E. earning capacity of the family as a whole 371, 11 L. R. A. (N. S.) 623, and the notes was not, it is true, shown, but it was shown to that case as reported in 10 Ann. Cas. 111, that the father and son were both carpenters 113, and can find no support for the propo- and concrete makers and in what may be sition. All that the cases hold is that there termed the poorer class of society. In fact, must be some proof of a pecuniary loss to the evidence conclusively shows that all of the beneficiaries, and that in such cases the earnings were turned into a joint fund mortality tables are competent evidence. for the family support. We think that the All that the case of Rhoads v. Chicago, etc., evidence was sufficient to warrant the reRy. Co., supra, held was that in a case where covery of substantial damages, and that the the mortality tables had been introduced it amount recovered ($2,000) should not, under was error for the court to instruct the jury the circumstances, be deemed in any way exthat a father was entitled to a sum equal cessive. to the earnings of his son during the son's expectancy of life, when the tables showed that the life of the son would have been 28 years longer than that of his father. In other words, the court held that all the father could possibly recover would be a sum equal to the support that he would receive from his son during his (the father's) life. We have, indeed, examined the Illinois reports with a great deal of care, and we have yet to find a case in which a judgment has been set aside because of the failure to introduce mortality tables in evidence. It is well established, indeed, as we have shown in the Ruehl Case, that the court may itself take judicial notice of such mortality tables. It is also well established that the things of which a court may take judicial notice are things which are generally known. Takin judicial notice, as we do, and may, of the Carlisle expectancy tables and of the expectancy of life of the deceased, which was 37.14 years, of the father, which was 18.97 years, and of the mother, which was 22.50 years, if we put her age at 48, of the youngest child, which was 45 years, and of the next child, which was 42.17 years, and considering the earning capacity of the deceased shown in the trial, we are not prepared to say that the verdict was excessive, or that only nominal damages should have been awarded. Little v. Bousfield & Co., 165 Mich. 654, 131 N. W. 63.

This case is governed on the merits by Kunkel v. Soo, 18 N. D. 367, 121 N. W. 830, and, inasmuch as that states the law of this jurisdiction, I concur.

On Petition for Rehearing.

BRUCE, J. Counsel for appellant files a sweeping petition for rehearing, alleging that the opinion in chief "is in decided conflict with, and ignores controlling decisions of, this court; that it is based upon errors of law and errors of fact, upon omissions of material facts and misleading statements of fact; that it appears that it was rendered hastily; and that the facts as shown by the record were not carefully considered." When we come to a specification of the errors alleged to have been committed by the court, however, we find that they revolve around its conclusion as to contributory negligence, its allegation that the night was stormy and that such storm was of any moment; that there was proof by which the jury might find negligence in the case; that the fact that the defendant had introduced no evidence was of any moment; that the opinion of the court was based upon the assumption that the witness Chapin saw the switch engine testified to at 11:15 o'clock, and not at 10:20 o'clock, p. m.; that evidence of a switch engine passing the crossing at 10:20 without a light was not admissible; that the court arbitrarily assumed that decedent's mother's age was 46 years; and that the court held that damages could be based on the total life expectancy, not merely of the deceased, but of his beneficiaries.

[8] But defendant and appellant says that there is no proof of any pecuniary loss on which a recovery can be based, even if the mortality tables had been introduced or were unnecessary. Counsel argues that there is no direct proof as to the money contributed by the son to his family, or of the monetary condition and needs of that family. We do From the petition we now assume that not so understand the evidence. We have counsel for appellant concedes that expectanheld in the case of Satterberg v. Soo Ry.cy tables are not necessary to be introduced

in such cases. He says: "We will assume, "To justify interference by the court with for the sake of argument, that no expectancy the verdict of the jury, it must appear that tables are necessary in cases of this kind, some rule of law has been violated, or else although we venture to predict that the loose that the verdict is so excessive or grossly practices thereby permitted will be of untold inadequate as to indicate partiality, passion, harm." If such is the result, this court can- or prejudice." 13 Cyc. 376. The trial court not possibly be charged with inaugurating committed no error in regard to the age of the custom or with overruling the established the mother. The matter was not submitted principles of the past. As stated in the opin- by any instruction to the jury. We can see ion, we have yet to find, and counsel for ap- no evidence of passion or prejudice, nor any pellant has not been able to point out, any violation of law, or that the self-evident authorities which make that introduction truth which we stated in our opinion has necessary. When introduced they are intro- any effect on the case. duced as an aid to the jury, and not on the theory that without their introduction the jury would have been unable to act. "While various forms of life tables are usually used for the purpose of assisting the jury in estimating the expectation of life, they are not essential. The jury may make their estimate from the other evidence as to the age, health, habits, and physical condition of plaintiff." 13 Cyc. 198. See, also, cases cited in original opinion and in Ruehl v. Lidgerwood Tel. Co., 135 N. W. 793.

[9] Counsel, we know, criticises the court for assuming that the mother of the deceased must have been 46 years of age and for then stating that if she was 48 years of age her expectancy of life would be 22.50 years. "It has," he says, "been our experience that men sometimes marry women of all ages, and how the court can deliberately find the age of a person and arbitrarily insert that age in the record, and then figure out the mother's expectancy, so as to arrive at what her damages would have been by reason of the death of her son, is beyond our ken." The answer to this is that the court did not assess any damages in this case. It merely stated the life expectancy of the different parties interested. It did not even, as counsel inferred, suggest or hint that the plaintiff would be entitled to a recovery which would be based upon the entire life expectancy of any or all of the relatives of the deceased, or of the deceased, or that any allowance could be made in regard to the minors after they had reached the age of 21. It merely stated what the tables would have proved, if they had been introduced, as being something of which the court might take judicial notice. In our opinion, indeed, the exact age of the mother is immaterial. If she had married the father of the deceased when at the age of 15, or, on the other hand, at the age of 30, it would have made no difference in our conclusion. The jury were justified, at any rate, in finding that she had some expectancy. In our opinion the verdict of the jury is abundantly sustained on the basis of damages to the father and the minor brothers and sisters alone, and we can exclude the mother from the case altogether. Sieber v. Great Northern Ry. Co., 76 Minn. 269, 79 N. W. 95. It is not the habit of courts to set aside ver

[19] Counsel for appellant charges that on the question of contributory negligence of the deceased the court erred in "overruling controlling decisions. Also its conclusion is based on an erroneous and misleading statement of fact." "Even if we were to assume that the statements in the opinion as to the night being 'stormy' are true," counsel says, "we still have a condition existing that any one who cared to use his eyes could see; one who cared to look on that night could see a box car from a distance of 150 to 200 feet; this with the cold wind and everything else. What possible difference, we ask, can it make how cold the night was, or how great was the velocity of the wind, or even how stormy it was, if, considering all these conditions, one could see a man 30 feet distant and a box car from a distance of 150 to 200 feet?" Why counsel is so reluctant to concede that the night was stormy we are unable to understand. The word "stormy" does not necessarily include either rain or snow, nor does the word "storm." It includes "a violent disturbance of the atmosphere, attended by wind, rain, snow, hail, or thunder and lightning. Storm is violent agitation or commotion of the elements by wind, etc., but not necessarily implying the fall of anything from the clouds." Webster's International Dictionary. The word "stormy" includes "agitated with furious winds." Id. Whether snowing or not, the fact remains that it was bitterly cold; that a strong wind of the velocity of from 30 to 40 miles an hour was blowing. There is also evidence that sand and gravel and débris were flying in the air. Counsel says that: "This court has already decided that the presumption of due care created where one has met death, no one seeing the accident, only arises where doubt exists as to the deceased's ability to see or hear the train or cars which caused his death." There is no doubt upon this proposition. But can we say, as a matter of law, that one battling against a storm and cold weather of this kind was necessarily negli gent because he did not see the outlines of a car or of an engine in time to avoid the accident? All the evidence as to sound and sight that there is is that, when "one got on this crossing, he could see down in the direction of the depot 150 or 200 feet by good electric light;" that "a man 125 feet south

case, that contributed to his death."

In the case of Frederickson v. Ia. Central Ry. Co. (Iowa) 135 N. W. 12, we have a very similar case, and in it we find the following language: "It is said that the court should have held, as a matter of law, that the deceased was guilty of contributory negligence, but we cannot assent to the proposition. While the crossing in question was so open that the approach of a train could readily have been seen by the exercise of care under ordinary circumstances, the record shows that on the afternoon in question the wind was high, and that at times the air was so full of drifting snow that a person could not see far. What precaution deceased may have taken when he approached this crossing cannot be certainly determined, but he had used it frequently for many years and knew that it was dangerous to attempt to cross the track without exercising care, and the presumption that we have already referred to in connection with evidence of the condition of the weather at the time, was, we think, sufficient to take the case, to the jury."

view" of the same; that "a man standing at | duct is entitled to all reasonable probabilithe crossing and looking down towards the ties. One thing is certain, that he did not depot could tell a man 30 feet away and the know that these cars were creeping towards outlines of a box car 150 to 200 feet" away. and so near him when he undertook to cross It is argued, we know, that the wind was the track. We think the jury might have blowing in the direction of the deceased as properly found, as they did, that the dehe approached the track. If it was blowing ceased was not guilty of any want of ordiin his direction as he approached the track,|nary care, under the circumstances of the it was not blowing in his direction when he was upon it. Nor is the blowing of the wind any conclusive argument. The deceased would naturally lower his head. If sand and dust and gravel was blowing (of which there is some evidence), he would probably be more or less blinded. A 30 to 40 mile wind, with the thermometer at 18 degrees below zero, is not a thing that is easy to be battled with. He had a right to rely on some degree of care on the part of the railway company. If he could have seen a man at 30 feet, or the outlines of a car at 150 feet, the men in charge of the railroad engine could have seen him. The mere fact that a wind is blowing towards a man is by no means conclusive as to the carriage of sound. It is a well-known physical fact that sound is not made more distinct in a gale than it is on a quiet evening. It is a matter of common knowledge that the rush and whistle of the wind and the beating of the wind against one's face and against one's ears has a tendency to interfere with, as a rule, rather than to aid hearing. Not merely is the conveyance of sound impeded by a heavy storm, and the sound waves broken up by the turbulence of the air, but there is a confusion of sounds, and hearing is a psychological, as well as a physical, function. It is just as necessary to distinguish and disassociate as it is that an impression shall be made upon the eardrum. We are surrounded, in fact, by myriads of sounds, and hearing is merely discrimination and disassociation.

The only material difference in the cases is the fact that in the Iowa case there was evidence of flurries of snow, while in the case at bar there was evidence of flurries of sand and gravel and dust. When it comes to a matter of eyesight or hearing, we think few who are acquainted with the conditions in the western part of North Dakota would contend that one can hear or see better in a flurry of dust than he can in a flurry of snow. It is true in the Iowa case there was some evidence that the statutory signals had not been given, and therefore some evidence of negligence. There is, in the case at bar, however, evidence from which the jury could infer negligence also. We say this advisedly, as criticism was made in the petition for rehearing upon the statements of the opinion in chief. We did not, in that opinion, hold that anything was negligence, as a matter of law. We were merely considering, and we are merely considering here, the question as to whether there was evidence from which the jury might infer negligence. It is to be remembered, too, in this case, that, a verdict of the jury being rendered, it is for this court to resolve conflicts in the evidence in favor rather than against that verdict.

"The jury," says the Supreme Court of Wisconsin in the case of Phillips v. Milwaukee & Northern Ry. Co., 77 Wis. 349, 355, 46 N. W. 543, 544 (9 L. R. A. 521), "may also very properly have considered the facts that it was a cold and stormy day and that the deceased had a shawl about his head and ears, which might have interfered to some extent with his seeing as well as hearing. It was not a day for taking observations, but for keeping straight on. The employés of the road kept themselves protected from the weather on the engine, where they could not look out for these wild detached cars that they had sent down the track, or warn the deceased of their approach. These facts may well modify the rule that it was the duty of the deceased to look just at the time when the cars were near him. It may be that he had looked in that direction, but when these The complaint alleges negligence in maindetached cars had not yet started on the taining an improperly guarded frog in the sidetrack. He is not here to be questioned highway. That there was a frog in the as to what he did or did not do, and his con- | highway is undisputed. It was not in the

onds, respectively. Can any one say, as a matter of law, that under the circumstances of the case contributory negligence is absolutely shown, or that an inference of negligence on the part of the defendant is not shown? It is alleged by counsel that a passenger train was due at about the same time, but where is there any testimony in the record from any member of that passenger crew? It was the duty of the passenger crew to keep a lookout at the crossing just as much as it was the duty of the men on the switch engine. Counsel for appellant wishes us to excuse defendant by the assumption of an accident, which, in itself, is by no means free from a suggestion of negligence.

planking, but about four feet therefrom in the highway. The jury was perfectly justified, from the evidence, in holding that the deceased was caught in this frog, and, even if headlights and tail lights were maintained upon the engines of the defendant, the condition of the crossing may still have been the proximate cause of the injury. Added to this was the testimony of the defendant's engineer that he did not see the deceased and did not know of the accident at the time of its occurrence. The testimony shows that the highway was 80 feet in width. The planking was only 16 feet. The presumption is that the deceased was not guilty of contributory negligence, and that the instinct of self-preservation was in operation. The The rule of probabilities was laid down by jury would have been perfectly justified from the evidence in holding that the deceased was caught in this frog, and, even if headlights and tail lights were both maintained upon the engine, such fact may have been the proximate cause of the injury. It was for the jury to say whether, under the circumstances of the case, the defendant was negligent in running this engine across this crossing in the way that it did and on the night in question. Even if the deceased could have seen a box car 150 feet away, it does not follow by any means that it was negligence on his part to cross the tracks, nor when he has a perfect right to use the whole of the highway would it be presumed to be negligence for him, on a dark night and in a storm such as that which prevailed on the night in question, to walk on the side of the few feet of planking that was furnished.

the Supreme Court of Idaho in the case of Adams v. Bunker Hill Mining Co., 12 Idaho, 637, 89 Pac. 624, 11 L. R. A. (N. S.) 844, as follows: "Where the evidence in a personal injury case is so uncertain as to leave it equally clear and probable that the injury resulted from any one of a number of causes that might be suggested, then and in that case a verdict for plaintiff would be pure speculation and could not be sustained; but where the evidence, although circumstantial, is such that it would appear possible that the injury resulted from any one of several causes, and yet it points to the greater probability that it resulted from the specific cause charged by the plaintiff, a nonsuit should not be granted. In the latter case the jury will be justified in returning a verdict in favor of the plaintiff, although it be possible that the injury may have resulted from some other cause. The law does not anticipate or attempt to exclude mere possibilities. If upon any fair construction that a reasonable man might put upon the evidence, or any inference that might reasonably be drawn therefrom, the conclusion of negligence can be arrived at or justified, then the defendant is not entitled to a nonsuit, but the question of negligence should go to the jury." In the case at bar the only theory of the accident outside of the mere suggestion of contributory negligence from not looking for the car and of the passage of the passenger train is that the plaintiff crawled

through the cars. All the evidence on this

In McNamara v. New York Central Railway, 136 N. Y. 650, 32 N. E. 765, it was held that the testimony of a witness as to the ability of the deceased to see was not conclusive upon the jury, but merely an expression of opinion. Even if we suppose that he could have seen an engine 150 or 200 feet away, there is no evidence or presumption that the engine was less than that distance from him, or even that distance from him when he attempted to cross the track. On this point, the fact that there were three men in the switching crew, and that the testimony of none of them is preserved, nor do the engineer or fireman testify upon the subject, is full of significance. If, when he subject is the testimony of one of the witnesses that an engineer, while switching cars, reached the track, the engine first came with- stopped for about three minutes upon the in the 200 feet limit of sight, it is not unrea- crossing. The string of cars at the most, and sonable to suppose that plaintiff when he at any time, was only from seven to ten cars saw it started or jumped to one side. In do- in length. The time when the stop was made ing so he might have been caught in the upon the crossing is not testified to, and is frog. He may have been walking in the full not connected with the time of the accident. highway anyway, as he had a right to do, It is admitted that there were three men in and stumbled over the frog. A train run- the switching crew as well as the engineer ning at the rate of 20 miles an hour would and fireman. Is there any shadow of proof take less than 5 seconds to travel the dis- that at this time the plaintiff's decedent tance of 150 feet, and less than 7 seconds to crawled beneath the cars, and is not the travel the distance of 200 feet. If it was probability overwhelming that, if he had atrunning at the rate of 10 miles an hour, it tempted to do so, one of the four men would