#### H. C. Purcell, Administrator, Appellant, v. The Chicago & Northwestern Railway Company.

Duty to Trespasser: railroads. A railroad is liable for the death of a trespasser on one of its bridges, who was run over by a train, where the engineer could have stopped it in time to avoid the 1 accident, had the fireman after he had discovered the trespasser on the bridge, promptly notified the engineer of the danger.

Duty of trespasser. The fact that the trespasser, a man sixty-five years old, might have jumped to the ground, a distance of over 2 eight feet, or that he might have laid down on the ties, does not relieve the railroad company if its employes neglected to exercise reasonable care to avoid the collision after they had discovered him on the bridge.

Evidence: res ghstje. What an engineer whose engine ran over a man said at the inquest five and one-half hours after the accident, 3 is not admissible as part of the *res gestes.*

*Appeal from Harrison District Oourt.*— Hon. George W. Wakeeield, Judge.

Saturday, October 28, 1899.

On the 21st day of March, 1895, plaintiff’s decedent was killed by one of defendant’s trains, and this action is to recover the damage sustained by the estate. The verdict was, by direction of the court, for the defendant, and the plaintiff *appealed.*

Reversed.

*629*8. H. Gochran*for appellant.

*Hubbard, Dcuwley & Wheeler*for appellee.

Ladd, J.

Tbe deceased, Z. W. Hunt, o>n tbe day be was killed, was walking on tbe defendant’s track, towards tbe east, and when on a bridge some eight feet high was struck by a fast passenger train, known as tbe “Overland Limited,” going west. It appears without dispute that when be was first seen by tbe engineer tbe train was a, mile away, tbe track being .straight for that distance. At that time be was walking oil tbe track west of tbe bridge, but, before reaching it, stepped to' tbe south side of tbe track. Tbe 1 engineer’s attention from then on was taken by tbe semaphore at Missouri Valley, and be saw no more of him. But tbe fireman testified: “When I first saw Mr. Hunt, be was on tbe south side of tbe track, about eight or ten feet of tbe trestle. When I saw him be was walking on tbe left side towards the train, and he got up on the bridge, and kept walking on the bridge until we bit him. He leaned over tbe bridge with bis face towards us. When I first saw Mr. Hjunt, I think tbe engine was three or four oar lengths from him.” Both tbe engineer and fireman estimate tbe speed of the train at forty or more miles an hour. Tbe bridge was seventy-eight feet in length. One Athy testified that he was standing at a farm house, about a half; mile distant; saw tbe accident; and that Hunt was three-fourths of tbe way across tbe bridge, within fifteen or twenty feet of tbe east end, when struck. This was the only witness fixing the point on the bridge where the deceased was standing at the time. That the defendant owed the deceased no active duty before he was seen on the bridge must be conceded. It could not have been reasonably anticipated that he would go on the bridge in front of an approaching train, until he did so, or • indicated in some way such an intention. See *Thomas v. Railway Co.,*93 Iowa, 248; *Burg v. Railway Co., 90*Iowa, 106. But, if Athy is to be believed, he must have walked *630sixty feet o¡a tbe bridge, towards tbe train, after tbe fireman, bad observed bim in a place of peril. Conceding tbe train to bave been moving at tbe rate mentioned by tbe employes, ■ — though Atby put tbe speed mucb lower, — tbe engine was between six hundred and eight hundred feet from tbe deceased when the fireman first saw bim go on tbe bridge. If moving but thirty miles an hour, as stated by Atby, it could not bave been that far off. True, tbe fireman estimates tbe distance at three or four car lengths. But be saw bim until tbe time be was struck, and tbe jury might bave found that to- be at tbe point testified to by Atby. Tbe question, tben, arises, could tbe train bave been stopped in time to bave avoided the accident ? A witness, who» bad at one time been an engineer, testified that such a train as tbe one in question might be stopped, when moving at tbe speed of forty miles an hour, within one hundred yards. This evidence was undisputed. lie also' gave estimates of distances within which it might be brought to a standstill when moving slower. Whether this evidence is credible cannot be considered in tbe absence of any controversy concerning it. The appellant makes no claim but that it must be taken as true for tbe purposes of this case. Had tbe fireman warned tbe engineer of Hunt’s dangerous situation instantly when be observed bim going on tbe bridge, and tbe engineer employed every means, consistently with safety, to stop tbe train, tbe injury might bave been averted. At least the jury might bave so concluded from tbe evidence as it stood when tbe verdict was directed.

II. It is suggested that tbe deceased should bave jumped from tbe bridge, or else laid down on tbe ties. He was sixty-five years old, and it would certainly bave been *2***hazardous to bave leaped a distance of eight feet to the ice or frozen ground below. It must be said that be was negligent in going on tbe bridge and in being where be was. He might and ought to bave done differently. But this did not excuse the defendant if its employes observed bim heedlessly walk out on tbe trestle»*631work, apparently oblivious of tbe peril of being run down by tbe approaching train, and if, by tbe exercise of ordinary care on their part in the application and use of every available means for tbe protection of life, the injury could have been averted. They were not permitted to speculate whether be would jump from the bridge, or lie down, or in some other manner get out of barm’s way a moment after it became evident that be was insensible of tbe impending danger, or incapable of providing for bis safety. Tbe moment he went on tbe bridge, his peril was' manifest and imminent, ■ — -a warning that be was taking no heed for bis own safety,— and tbe defendant’s employes, having this knowledge, were required to exercise reasonable care to avoid a collision. Whether they did so, under tbe circumstances disclosed, was for tbe jury to say. See *Railroad Co. v. Vaughan,*93 Ala. 209 (30 Am. St., 50, 9 South. Rep. 468); *Clark v. Railroad Co.,*109 N. C., 430 (14 S. E. Rep. 43); *Pierce v.*Walters, 164 (Ill. Sup.) 560 (45 N. E. Rep. 1069); *Sutzin v. Railway Co.,*95 Iowa., 304; *Remick v. Railway Co.,*62 Iowa, 161; *Railway Co. v. Whipple,*39 Kan. Sup. 531 (18 Pac. Rep. 730); Elliott Railroads, section 1287 ; Shearman & Redfield Negligence, sections 99 and 10.

III. On the trial a witness was asked what be beard the engineer say at tbe coroner’s inquest, five and one-half hours after tbe accident, with reference to having 3 seen Hunt, and tbe distance be was from him at that time. This was not calling for a part of tbe transaction, but for an account of it at another time and place, and fox this reason was not a part of tbe *res*gestae.— Reversed.