#### Susan O. Adams, Administratrix, v. The Chicago, Milwaukee *&*St. Paul Railway Company, Appellant.

Railroads: evidence. General testimony that one killed by an 1 engine, and charged with contributory negligence, was always 2 careful and on the lookout for danger is inadmissible when not 3 introduced to show the earning capacity of deceased, and where there are witnésses to facts attending the injury.

Expekt testimony by one who claims to have signalled an engine from a distance of twenty-five feet, to stop, as to the distance at 5 which he could stop au engine running at a certain speed, in case he saw a signal twenty-five feet away, is inadmissible when the engineer did not see the signal.

Proving- public travel. It is not permissible to show that a given street was much used for public travel, when deceased was struck 4 so far from it that au engine running at unlawful speed could have slowed up before it reached that street.

*Appeal from Woodbury District Court.*— Hon. A. Yan Wagenen, Judge.

Monday, January 28, 1895.

S. H. Adam® was killed by being knocked down and run over by one of defend'amBs locomotive engines in its switch, yards at Sioux City. The plaintiff is Ms widow, iand administratrix of his estate. This action was brought to recover damages for causing the death *566of Adams. From a judgment upon the verdict of a¡ jury the defendant *appeals.*

Reversed.

*II. II. Field*and *Taylor, Shull & Farnsworth*for appellant.

*John Wallace*and *R. II. Brown*for appellee.

Rothrock, J.

I. Adiams was what was known, as “night yard master,” and had charge of the making up of freight trains and switching cars in the yard. His watch, or time of service, commenced at sis o’clock in the evening. On the evening of the fifth of August, 1891, he went to Ms work at the usual time, and at the time of his death, which occurred at about seven o’clock, aind before the' dusk of the evening', he was in charge of a switching crew, consisting of an engineer, fireman, and one or two switchmen, making up' a freight train. The switch .engine was drawing eight or ten freight cars> and the deceased was riding on the footboard at the rear of the engine. He left the engine for the purpose of .signaling for a stop to uncouple and throw some cars backward on another track. He went quickly across, and stood between the rails of .another track, and was. in the act of signaling to the engineer on the switch engine, when he wlas struck by a backing engine on the track on which he was standing, knocked down, run over, and kilted. It is charged in the petition that the backing engine was negligently operated, in that it failed to give signals for danger, and to stop in obedience, to signals given for that purpose purpose; that the engine was backing at a rate of speed in excess of six miles an hour, in violation of an ordinance of the city; and that the engineer in charge, of the engine willfully ¡and negligently failed to stop the same after he discovered the perilous position of *567A rlams; and that, if the engine bad been promptly-stopped when A'dam® was struck by the rear end of the tender, and went under, he would not have received a mortal injury. The defendant answered by a general denial of negligence, and a denial of the averment of the petition that Adams- was free from, contributory negligence.

It is not necessary to give a detailed description of the yards and railroad tracks at the place where the casualty occurred. The grounds upon which we place our decision -do not require that more than a general statement be made. The two. main tracks of the defendant’s railroad where the accident occurred are laid east and west on Second street. This -street is crossed at right angles by Steuben street, Lafayette street, Clark street, and other streets. Second street, at the place of the accident, and for some distance east and west, was given up to railroad purposes. There was no general travel along it. The switch engine on which the deceased was riding came up from the southeast on a side track, and on to' the south main track, and was moving west. The road engine by which Adams was killed was backing down on the north main track from the west, so- that the two engines were moving in opposite directions. A short time before the accident a regular passenger train came in from the east .along the northerly track, and passed on west some distance to- the passenger depot, where the engine was detached, and backed down over the same track to the roundhouse, and it was on its way to- the roundhouse when it struck Adams. This was the usual and ordinary method of -operating the passenger train and engine. The train was not belated on that evening. It may have been a very few minutes late. It was due at the passenger depot at six thirty-five p. m., and the accident happened at seven o’clock, or very near that *568time. There is some contention in behalf of appellee that the return of the engine was from fifteen to twenty-five minutes after its usual time. But this is not sustained by the evidence. There is no question but that the deceased knew that the engine backed down a few minutes before or after seven o’clock. He was an experienced railroad operative, and had been night yard master in that yard for about eighteen months. There is a conflict in the evidence- as to the exact point on the track where Adams got off the foot-board of the switch engine. There is also a dispute as to tine speed of the road engine, and as to- how far it was distant from Adam-s when he was on the track where the fatality occurred. The very decided weight of the evidence, so far as the number of witnesses is ■concerned, is that the engine was not backed at a speed exceeding -six miles an hour, and that the fireman was in his proper place, and ringing the hell, on the engine, for some distance before it reached the place- where it struck Adams, and that Adams came on the track not to exceed ten feet from the rear of the tender. A majority of the witnesses fix it at a much less distance. The fact is apparent from all the evidence that he was so close t-o the engine that from the time he went on the track till he was struck the lapse of time was so inconsiderable that it was practically impossible to estimate it by seconds. And there is a decided preponderance of evidence that both the engineer and fireman on the engine were in their proper places, and on the lookout backwards, and that the engine was stopped as soon as it could be after the fireman discovered Adams passing on to the track. It will be observed from this brief statement of our views of the evidence in the case that the question of the contributory negligence of Adams was a most important matter for the consideration of the jury.

*569II. The plaintiff called several witnesses, who were interrogated as to Adams being a careful and prudent 1 main, and watchful for danger, abo at his wort. In other words, the witnesses were questioned as to the care of Adams when about Ms work, .and his watchfulness to- avoid danger. This line of evidence was objected to, and the witnesses, without answering as to any fact, responded to the questions in as general a way as the questions were put; that he was always careful, and on the lookout for danger. We have not given the language of the questions and answers, but have stated the substance of the examinations. Objections were made to this line of evidence, and the objections were overruled, and proper exceptions were taken. We can discover no grounds upon which we can sustain these rulings of the court. They appear to have no support in adjudged cases, and, even if they had, they would not commend themselves to us as founded on sound reason. Such a line of evidence raise® a collateral and remote issue, which, if sustained, would lead! to all manner of complications. Of course, if the general character of the deceased as to care to avoid injury may be shown by witnesses, the defendant would have the right to rebut that by calling witnesses to give their opinion® or estimate of him as a reckless and careles® mían, and it would be competent for the defendant to prove by witnesses that the coemployes charged with negligence were always careful to perform their duties. We will cite but a few of the many cases which hold that such evidence is incompetent: *Chase v. Railway Co.,*77 Me. 62; *Scott v. Hale,*16 Me. 326; *Morris v. Town of East Haven,*41 Conn. 252; *McDonald v. Savoy,*110 Mass. 49; *Railroad Co. v. Clark,*108 Ill. 113. Counsel for appellee seek to sustain the runnng of the court upon several grounds. It *570is urged that' the evidence was competent to show the 2 loss to the estate of the deceased. The ready answer to this is that the record shows that when this line of testimony was introduced it; was not in connection with evidence of the capacity of the deceased to earn money. And the ground is taken that the evidence was competent, in view of the facts and circumstances of the case, “as tending to show the exercise of due care on the part of the deceased.” We are cited to a large number of cases, which it is claimed are directly in point on this question. We confess that we have not examined all of the cited cases. Such as we have examined do not support the rule, and in some of them the question is not presented nor considered. Most of them are founded upon evidence of facts, as distinguished from conclusions or opinions, 3 as to the careful habits of the person injured or killed. There are cases which hold that evidence of this character is proper when there are no witnesses to facts attending the accident. *Railway Co. v. Clark, supra; Cassidy v. Angell,*12 R. I. 447. We need not consider that question, as it is not in this case. Some three or four witnesses testified to the facts immediately attending the casualty. One witness stated positively that he saw the deceased step from the footboard of the switch engine and go. on the track, where he was almost instantly knocked down by the moving tender. Others testified that they saw him on the track immediately before and at the time he was struck. Counsel for appellee insist that the evidence under consideration was proper, because there was a conflict in the evidence on the facts attending the accident. We discover no reason for the application of any such a distinction. It is due to the learned district judge to. say that it appears from the record that objections to the evidence were overruled with serious *571doubts as to the correctness of the rulings, and with the statement to appellee’s counsel that, if they were willing to insist on it, he would overrule the objections.

III. Adams was struck by the tender some distance west of Steuben street, which crossed Second street at right angles. The plaintiff wais permitted to 4 introduce evidence that Steuben street was much used for public travel, and that there was a street railroad thereon. We think this was improper. The distance from the place of the accident to Steuben, street was such that, even if the engine was moving at an unlawful rate of speed, there was ample time and distance to slow up before reaching the line of Steuben street

IV. The plaintiff was permitted to introduce the testimony of a witness as to the distance in which he could stop an engine running sis and twelve miles an hour in case he saw a man twenty-five feet north, giving, signals, and calling out to him to stop. This testimony 5 was objected *to-,*and complaint is made of the ruling. We think the evidence should have been excluded. It was founded on the testimony of a witness named Allen, who testified that he stood twenty-five feet from the track, and called and signaled to stop. There is a dispute as to where Allen stood, — whether directly opposite to the engine or to the west of it. In any event, it was error to take the evidence of an expert on any such supposed state of facts, because there was no evidence that the calling was heard or signals seen by the engineer. Allen testified as a witness on that question as follows: . “I don’t know whether the engineer heard me or not. Afterward I heard the engineer throw the lever. I could hear the noise of that.” The engineer testified that he neither heard Allen nor. saw the signals, but that he had his head out of the cab window, looking ahead, as *572was his duty; and that he used every effort to stop the engine the moment the call came from the fireman, on the south side of the engine, — the side from which Adams, entered on the main track.

Y. Many other alleged errors are discussed by counsel, which do not demand special mention, nor separate consideration. The charge of the court to the jury appears to uis to be correct; at least we discover no error therein. It is strongly urged on behalf of appellant that the court should have sustained a motion directing a verdict to be returned against plaintiff. We do not pass on that question, as the evidence upon another trial may not be the same as on the trial from which this appeal was taken. We think it is not improper to say that the evidence in this record does not show that .the deceased’s life could have been saved by any act of the engineer after the deceased was struck by the tender. Such a theory, so far as this record shows, is founded on the merest supposition or conjecture. The judgment of the District Court is *reversed.*