tive that it is not worthy of consideration. | such railway where such crossing occurs and The evidence on this point was brought out on shall be laid not more than one inch apart, the examination of the witness Wordeman, except where the rail prevents; the plank the engineer of the switching engine, and is next inside of the rail shall not be more as follows: "Q. Did you at any time push than 21⁄2 inches from the inside surface of five, six, or seven cars over the crossing that such rail, and the plank used in the crossing night? A. No, sir. There were cars west of shall not be less than 3 inches in thickness the crossing that night pushed by my engine. and so laid that the upper surface of the I took several cars. It might have been plank shall be on a level with the upper surseven to ten. I have no way of finding out, face of the rail; such plank shall extend all except how far we came. I pulled them up. along the railway the entire width of the My engine was facing east when I was pull-highway grade and in no case less than 20 ing. I backed my engine up. It was some feet." The evidence is conclusive that this time about 9 o'clock when I pulled those planking did not extend the whole width of cars up there. I cannot say that was the the highway. Such being the case, the inonly time I pulled any cars up there. My struction of the court to the jury was perengine was facing east and pulling a string fectly proper which charged that: "If you of from seven to ten cars. I pulled over find by a preponderance of the evidence that this crossing probably four or five times; I a switch frog was constructed by the defendwould say several times. I pulled over this ant railway company within the grade of the crossing sometimes two and three or four highway, within the grade of the street at car lengths. Q. The times you pulled over the crossing at which the deceased was killthe crossing, did you stop for any length of ed, if you find he was killed at such crossing, time? A. Once we stopped for a few minutes. then it is for you to determine whether or Q. How much? Three minutes or four min- not the construction and maintenance of utes, or how long? A. I could not say. I such frog in a crossing within the grade of did not look at my watch. Q. Was it more the highway or street is an act of negligence; than three minutes? A. Might have been. I that of itself would not entitle the plaintiff stood there some length of time. I will not to recover in this action unless you are furswear that I was on that crossing five min- ther satisfied by a preponderance of evidence utes. I will swear that I was on that cross-that the erection and maintenance of such ing three minutes. Q. What for? A. I do not know. (By defendant.) Q. You were watching for signals from the switchmen while you were stopping on the crossing, weren't you? A. Yes." Prior to this time the witness had testified: "I tell the court that I run and switched that engine all that night back and forth across the crossing. I run my engine across the crossing that night. I cannot say when I first commenced to run across that crossing. It may have been at any time after 7 o'clock. I cannot tell this court at what hour I went across this crossing. It was exactly 12 o'clock when I left the engine. Up to the time I pulled the engine in and went to dinner, from 10 o'clock, I had been switching in that part of the yard and over this crossing at various times. I was throwing these cars back on the various tracks in the yard at various times as a switchman called upon me to switch them back. While doing this I had occasion at various times to pull up over this crossing, maybe five or six times. During those times I would pull not exceeding five car lengths over the crossing." Section 4320 of the Code provides that: "All railroad companies operating a line of railway in this state shall build, or cause to be built and kept in repair, good and suflicient crossings over such line at all points where any public highway in use is now or may hereafter be intersected by the same." Subdivision 2 of section 4321 provides that: "Plank shall be firmly spiked on and for the full length of the ties used in the roadbed of frog within the crossing and within the grade of the street was the proximate cause of the death of the deceased." These facts alone were sufficient to send the case to the jury. U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N. E. 1081. [11] In the case of Korab v. Chicago, Rock Island & Pacific Ry. Co., 149 Iowa, 711, 128 N. W. 529, 41 L. R. A. (N. S.) 32, the court said: “The admitted facts make it practically certain that deceased, while walking or running by the side of the moving train in the direction of the switch he was expected to close, stepped between the ends of the moving cars for some purpose not disclosed by the evidence, and, catching his foot in the unblocked guard, was quickly drawn under the wheels. There is no claim on the part of appellee that frogs or guards of this kind are not a source of peril to trainmen having occasion to walk over them in the performance of their duties, nor is it claimed that such peril may not be measurably removed or lessened by the use of blocks or wedges for that purpose. Indeed, it appears from appellee's evidence that blocks were formerly in use in its station yards, but for some reason not explained had for a considerable period been abandoned. Service of trainmen and switchmen in railway station yards is essentially dangerous at best; but it is incumbent upon the companies operating them to use reasonable care to make them as safe for their employés as is consistent with the proper operation of their roads. In the making up of trains, and the handling, mov * ing, and switching of cars, trainmen are required to walk upon and over the yard tracks at all times of the day and night, and ordinarily they must of necessity move with quickness and celerity from point to point, making it quite impossible that in every instance they should carefully survey their path or give close attention to the planting of each footstep. They may rightfully depend to some degree upon their employers to perform their duty to keep the surface of the yards free from all perils not inherent in the reasonable construction of the road and prosecution of the business for which they are intended. * * We are therefore of the opinion that upon the conceded facts a finding of the jury that defendant was negligent in failing to block or protect the frog in question would have sufficient support in the record. That the existence of the unblocked frog was the proximate cause, or at least a proximate cause, of the death of deceased is too clear to require argument. The debatable ground in the case, and the one upon which we may assume the trial court felt compelled to hold against the right of recovery, is upon the question whether the appellant sufficiently negatived the existence of contributory negligence on the part of the deceased. It is strenuously contended by appellee that there is no showing whatever of the reason or cause which led deceased to step between the cars upon the frog; that there is no evidence that in doing so he was acting in the line of his duty, or was in any manner using care for his own safety; but, on the contrary, the very fact that he did step into such place of danger shows conclusively his contributory negligence. Some of these propositions ignore rules which have been thoroughly settled by this court. As has already been noted, no living witness appears to testify as to the acts, movements, or conduct of the deceased from the time he disappeared in the direction of the switch until he met his death a brief moment later. At that time he was in the performance of his duty in the appellee's service, and there is no suggestion that he was not also exercising reasonable care for his safety. Under such circumstances, the appellant, as administrator, is entitled to the benefit of the presumption that deceased, moved by love of life and the ordinary instinct of self-protection and self-preservation which is characteristic of living reasoning beings, was in the exercise of reasonable care to that end. * * The Dalton Case [Dalton v. Railroad, 104 Iowa, 26, 73 N. W. 349] involved a highway crossing accident occurring in the nighttime, without living witnesses of the conduct of deceased; and this court, while conceding that under the circumstances it was the duty of the deceased to stop, look and listen before venturing upon the crossing, held that, in the absence of any evidence concerning his * tion that he did use due care, or, in other words, that he did stop, look, and listen. Indeed, to say that in the absence of other evidence the deceased is presumed to have been exercising reasonable care is in the very nature of the case to presume that he did the things, or took the steps, or exercised the caution which reasonable care required him to do or observe. In Baltimore Ry. Co. v. Landrigan, 191 U. S. 474, 24 Sup. Ct. 140, 48 L. Ed. 262, the deceased, a railway employé (though not a trainman), was run over and killed in the station yard in the city of Washington. No one saw the accident. In some manner he had been struck upon the track, his legs severed or crushed, and his body was found lying near at hand. The trial court instructed the jury that, in the absence of all testimony showing 'whether deceased stopped, looked, and listened before going upon the tracks, the presumption would be that he did.' In approving this instruction the Supreme Court says: 'We know of no more universal instinct than that of selfpreservation; none that so insistently.urges to care against injury. It has its motives to exercise in the fear of pain, maiming, and death. There are few presumptions based on human feelings or experience that have surer foundations than that expressed in the instruction objected to.' # * * In Johnson v. Railroad Co., 20 N. Y. 65, 75 Am. Dec. 375, discussing the same question, the court says: 'The natural instinct of self-preservation would stand in the place of positive evidence.' The presumption is something more than a mere shadowy generality. In the absence of direct evidence, the presumption supplies its place, and, if the issue of contributory negligence is the only obstacle to recovery, it is sufficient to support a verdict for the plaintiff. True, this presumption may be overcome by a showing of other circumstances from which the jury may fairly conclude that deceased was not in fact exercising due care; but in the nature of things this counter showing can rarely be so overwhelming and conclusive as to make the question whether the presumption has been fairly overcome a matter of law." See, also, Bickel v. Railroad Co., 217 Pa. 456, 66 Atl. 756, 118 Am. St. Rep. 926, and numerous cases cited in the opinon just quoted from. So, too, we still adhere to the proposition that the evidence that an engine was seen crossing the crossing an hour or so before the accident was admissible, if not to show custom, to show the condition of the trains and the method of the use of the track on the night in question; there being no eyewitnesses to the death, and such facts being pertinent. There is no contention that any foreign railway company was using the tracks. There is no dispute that two of these switch engines of the company were using the tracks. There is no dispute that one engine passed * these engines was seen without a tail light and started west on Fifty-First street. an hour before the accident, the evidence of such fact may not be conclusive, but it is competent. In this connection, as well as in connection with the admissibility of the evidence in regard to the condition of the lights upon the engine before the accident, the case of Southern Ry. Co. v. Posey, 124 Ala. 486, 26 South. 914, is suggestive. In that case the court held that in an action against a railway company for injuries sustained at a crossing, and where it did not appear that the driver of the wagon knew the condition of the crossing, or that, in the darkness, it could have seen the defect which caused the accident, his deflection within the road from the usually traveled part was not negligence; he having a right to assume that the entire width of the road was in proper condition. The court also held that testimony of a witness that he came near having a similar accident at the same place a short time before was competent as tending to show an unsafe condition of the crossing existing at the time of the accident. See, also, Malmstrom v. N. P. Ry. Co., 20 Wash. 195, 55 Pac. 38. About half past 1 o'clock a. m. deceased was found in a water-closet about 400 feet west of the tracks, alive, with only one shoe on. His face and hands were bruised and foot crushed. There was blood all the way from the track and Fifty-First street to this closet. Deceased's other shoe was found in the morning on the north side of Fifty-First street, wedged in between the track and the board of the sidewalk. At the trial, after the plaintiff had introduced all of her evidence and rested, defendant's counsel moved the court to dismiss the case for want of sufficient evidence to maintain it, and, that motion being overruled, evidence was introduced on the part of the defendant, and after all the evidence was in defendant's counsel again asked the court to instruct the jury that, upon the evidence before them, it was their duty to find a verdict for the defendant. The court refused to so instruct, and these rulings of the court are assigned as error. Had this instruction been asked at the conclusion of plaintiff's evidence, it should then have been given, as there had been then introduced no evidence of defendant's negligence; all the evidence looking in that direction being that of a witness who, at the probable time of the accident, was 300 or 400 feet away, and testified that he had no recollection of hearing the whistle or bell. But the testimony introduced by the defendant furnished such evidence tending to show negligence that it was then, in our opinion, proper for the court to refuse such an in In the case of Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed. 665, 14 C. C. A. 615, it was held that: "It is not error, in any action against a railway company for damages for an accident at a grade crossing, to permit witnesses who were familiar with the locality to testify to narrow escapes they have had at the same crossing, in connection with descriptions of the locality, for the purpose of showing the nature of the cross-struction; and, if so, appellant has no just ing and the difficulties of travelers in passing over it." "The questions of evidence that arise in actions for death," says Tiffany in his work on Death by Wrongful Act, § 189, “are for the most part the same as those that arise in ordinary personal injury cases. It is observed, however, that by reason of the death of the person injured it is often impossible to prove the facts and circumstances immediately surrounding the injury, and especially the absence of contributory negligence of the deceased, with the same precision and fullness that would be required in an action in which the person injured was alive and able to testify. For this reason courts incline to greater liberality in this class of cases in allowing the questions of the negligence of the defendant and the contributory negligence of the plaintiff to go to the jury upon slight evidence." In the case of Chicago & Alton Ry. Co. v. Carey, 115 Ill. 115, 3 N. E. 519, we find the following: "There was no witness of the occurrence. Deceased spent the evening at the store of one Hart, on Fifty-First street, about five blocks east of appellant's tracks, and was last seen, before the injury, by Hart, about 12:30 a. m., when deceased left Hart's store to go to his home west of the track, ground of complaint for either one of the court's rulings. Defendant's testimony showed that about midnight a gravel train came in from the south and stopped at FiftyFirst street. The train was there opened enough to make a cut at the street crossing, and was so left cut in two for a while. Twelve or 15 cars were pulled over the street to the north side, and the others left on the south side. A short time afterward the train was moved north of Fifty-First street to FortyNinth street by another engine (a switch engine), and put on a side track there, where the gravel cars were to be unloaded. In doing this, the engineer of the switch engine testified that near midnight he coupled onto the cars of the train which stood north of FiftyFirst street about 12 or 15 cars north of Fifty-First street, pushed them across FiftyFirst street against those standing on the south side, coupled them, and pulled them north over Fifty-First street; that there was a headlight on both ends of the switch engine, and the fireman was all the time ringing the bell. Under such evidence introduced by the defendant, the question of negligence could not properly have been taken by the court from the jury; but it should have been submitted to them to say whether, under the circumstances, there was not neg ligence in thus pushing these cars across he was making the ordinary use of that sideFifty-First street without taking of more precaution than appears in this case." In this case exactly the same points were raised by the defendant as are raised in the case at bar, and it is also to be remembered that in Illinois it devolves upon the plaintiff to allege and prove freedom from contributory negligence, which is not the case in North Dakota. walk by traveling on it when he was struck by the car. It would not be reasonable, but it would be a violent presumption, that he came to the sidewalk from the north while walking on defendant's track. He would be a trespasser, and doing that which was unlawful, to so use the track, and this cannot be presumed. So far, then, the negligence of the deceased is not shown." must yield to clear proof of his contributory Again, in the case of Phillips v. Milwaukee "Where a person is killed by the negligence & Northern Ry. Co., 77 Wis. 352, 46 N. W. of another," said Chief Justice Start in Gil543, 9 L. R. A. 521, we find the following: bert v. City of Tracy, 115 Minn. 443, 132 N. "There being no witness to this painful acci- W. 752, "a very strong presumption arises dent, how the deceased came to be on the that the deceased exercised due care to save sidewalk at that place, and whether walking himself from personal injury or death. The north or south on it, must be determined, if presumption is based upon a law of naat all, by circumstantial evidence. The ture, the universal and insistent instinct of learned counsel of the appellant contends self-preservation. The presumption, however, that it is unaccountable how the deceased came to be there, and it is entirely a matter of conjecture. That may be so, but is it necessary that the plaintiff account for his being on the sidewalk at that time and place? If it is shown that he met his death while walking on the sidewalk, where he had a right to be, that is sufficient for the plaintiff's case, and it is incumbent on the defendant to show that he was guilty of any want of ordinary care in placing himself in that position. It is therefore incumbent on the defendant to account for his being there, and if there is no proof of it, and it is all a matter of conjecture, then it follows that the deceased is presumed to have placed himself where he was killed, with due care, or at least without any want of ordinary care. The learned counsel says in his brief: 'Admitting that the deceased had reached that place when struck, is not the manner of his coming there left to conjecture? But verdicts cannot rest upon conjecture.' The verdict in this case does not rest on any conjecture as to how he came there. The verdict for the plaintiff rests rather on the fact alone that he was lawfully there, where he had a right to be, when he was killed. If the manner of his coming there was not shown, then no negligence of the deceased could be predicated upon it. That was the misfortune of the defendant and not of the plaintiff. We will not, therefore, consider the plausibility or otherwise of any of the theories of the learned counsel as to how the deceased came to the place where he was killed. The main and important question is, Was he struck by the cars while he was on the sidewalk? It seems to be conclusively shown that he was struck and killed at that place. No marks of blood or any traces of his presence on that track, west of the sidewalk, were found. The presumption is that he was struck and killed where the first blood in that direction was found, which was on the sidewalk. This is not conjecture, but a reasonable inference or deduction from these known facts. The presumption is that In the case of Union Stockyards Co. v. Conoyer, 41 Neb. 617, 59 N. W. 950, the court said: "The counsel for plaintiff in error, in an able brief and argument, strenuously contend that there was no evidence which even tends to prove that there was any negligence on the part of the company, which was the proximate cause of the injury to plaintiff; that the verdict of the jury was predicated upon speculation and conjecture, and not upon facts proved or admitted in the case. * * We will now go back to what we have heretofore alluded to, viz., that the plaintiff in error did not introduce any testimony, but allowed the case to be submitted to the jury on the evidence on behalf of the plaintiff. The rule of the law in this state on the subject of contributory negligence, as expressed in the case of City of Lincoln v. Walker, 18 Neb. 244, 20 N. W. 113, and Anderson v. Railroad Co., 35 Neb. 95, 52 N. W. as to create a probability that the accident was the result of negligence, in which case the physical facts are themselves evidential, and furnish what the law terms "evidence of negligence." In Bromley v. Railroad Co. [95 Ala. 397], 11 South. 341, it was held: 'Plaintiff's intestate, a brakeman on defendant's railroad, was killed by falling from a box car, in the top of which, near the brake, was a hole, according to some witnesses, four feet long, and according to others four feet square. Deceased was last seen alive, standing at the brake, near the hole. Held, that there was evidence for the jury to consider that the death of deceased was owing to the hole in the top of the car. * Where evidence is conflicting, or different inferences can be reasonably drawn from the evidence, or where there is any evidence tending to establish the case of the other side, the general affirmative charge should not be given in favor of either party.' * 840, is as follows: 'In an action for negli- | facts surrounding the accident will be such gence, where the plaintiff can prove his case without disclosing any negligence on his part, contributory negligence is a matter of defense; the burden of proving it being on the defendant.' And the Supreme Court of Wisconsin has said: "There being no witnesses as to how the death of a traveler at a railroad crossing occurred, deceased will be assumed to have been free from contributory negligence, where the circumstances and position in which he is found are as consistent with that presumption as with the presumption of contributory fault.' * * * There was no evidence in the case which tends in the least degree to show any contributory negligence or any fault on the part of McAnnelly, and we must consider the case, as to the other points, and the different positions in which McAnnelly was placed by the evidence, bearing in mind that there is no contributory negligence. After a careful reading of the evidence, we are convinced that there was a strong showing of the bad condition of the track, and sufficient evidence to submit to the jury and to sustain their finding as to what caused the trucks of the car to leave the track, and also of the knowledge on the part of the company, or lack of it, of this condition; and now we reach the main contention of the plaintiff in errorthat there was no testimony to connect the occurrence of the death of McAnnelly with the negligence of the company. In Sackett's Instructions to Juries (page 36) we find the following: "The jury are instructed that in determining what facts are proved in this case they should carefully consider all the evidence given before them, with all of the circumstances of the transaction in question, as detailed by the witnesses; and they may find any fact to be proved which they think may be rightfully and reasonably inferred from the evidence in the case, although there may be no direct testimony as to such fact (citing Binns v. State, 66 Ind. 428).' And in Thomp. Trials, § 1039: 'What inferences are to be drawn from the facts in evidence is, within reasonable limits, a question for the jury.' And again in section 1677: 'In actions for damage for negligence the general rule is, within limits already indicated, that whether the damage which accrued to the plaintiff is the proximate or the remote result of the negligence of the defendant is a question of fact for the jury; that is to say, when doubt arises as to whether the damages are direct and proximate, or speculative and remote, the question should be submitted to the jury under proper instructions.' In section 1678 of the same work is the following statement: 'In an action for damages for negligence, where the evidence entirely fails to connect the negligence with the fact of the accident, the court should direct the jury that the plaintiff cannot recover, though in many cases the physical In the case at bar, the last time McAnnelly was seen alive by one of the witnesses he was about four feet from the train and was apparently looking it over to see that everything was all right, as the train was then completed, or 'made up' as the railroad men term it, and, after it stood for a short time, 'pulled out.' One witness says: 'After things were all right, as a general thing, two of us got on (me and the foreman, McAnnelly), and after we slack back, and see that things are all right, get on as a usual thing.' Mr. Breckinridge: 'Yourself and McAnnelly?' 'Yes, sir.' Mr. Smyth: ‘And then you would accompany the train to where it was going?' 'Yes, sir.' "The whole crew?' 'Yes, sir.' It will doubtless be remembered that there was testimony that at the time McAnnelly was killed they were, as the witness stated it, 'pulling out.' This fact of the usual custom of the crew when they were 'pulling out,' coupled with the facts: That McAnnelly's body was discovered between the rails, stretched out lengthwise, and parallel with the rails, with a mark or track apparently made by the body from a point at which it would have fallen from the car, the forward trucks of which were derailed, to the place where it was found. That the first evidences of the body being upon the track were, as one witness expresses it: 'First mark I could discover was about six or eight feet from where the car left the track.' 'In what direction?' East.' 'It looked like the print in the cinders of a man's hip and shoulder.' That from here to where McAnnelly's body was found there was a distinct mark, which, as all the witnesses testify, appeared to be made by the hip and shoulder. That there were no blood spots or marks, or indications of any kind or nature whatsoever, on either the rail or ties, that McAnnelly had been struck by the wheels. That the truck had been 'A. |