
    The Baltimore & Ohio Railroad Company v. Fouts.
    
      Master and servant—Personal injury—Engineer of train not guilty of negligence—In misinterpreting signal by conductor, when.
    
    A conductor of a train of cars undertook to control the movement of his train by a signal to the engineer from a place on the train where he could not see the engineer and the engineer could not see more of him than his head and his hand rising and falling beside his head. The signal was a backward motion of the arm in a complete, vertical circle about the shoulder as a center. This could have been given' as easily from a. place where the body and the whole circuit of the arm of the conductor could have been seen by the engineer, and the rule of the service required that the conductor put himself in plain view of the engineer when giving the signal. The movement of the hand up and down toward the engineer in a short arc means “go ahead.” The engineer interpreted the signal as given to mean “go ahead” instead of “back up.” Held: This was not negligence on the part of the engineer.
    (No. 13429
    Decided March 18, 1913.)
    Error to the Circuit Court of Mahoning county.
    
      .Fouts was' conductor and one Barnes was engineer of the company’s eastbound freight train. •At 1 o’clock on the 3rd day of October, 1908, the train came to a switch, where it was cut in two for the purpose of drawing two cars out of the siding. There were ten or twelve cars in the forward section attached to the engine, and it was drawn forward till the end passed the switch points. The brakeman threw the switch to let the forward section back into the siding. Fouts got upon the deck of the last car at the rear end. He gave the back-up signal and put himself in position for the backward motion. The engineer could see only the upper part of the sign and took it for a go-ahead signal and moved the train forward, which threw the conductor backward off the car to the ground, and both bones of his right leg were broken so that it had to be amputated below the knee. He sued ■ the company for damages, alleging that the engineer negligently interpreted his back-up for a go-ahead signal. The affirmative. defense was that Fouts violated a rule of the company by giving the sign where he could not see the engineer and the engineer could not See him, and that, the small part of the signal vdiich was visible above the deck line of the first car indicated an opposite signal.
    The jury awarded him $7,500 damages. Motion for a new trial was overruled and judgment was entered on the verdict, and the circuit court affirmed the judgment. Error is assigned here, amongst others, that the verdict is not sustained by any evidence, and that the verdict and judgment should have been against Fouts upon the undisputed facts.
    
      ■ 'Messrs. Arrel, Wilson, Harrington ’&* De Ford, for plaintiff in error.
    
      Mr. D. F. Anderson, for defendant in error. : 1
   Wilkin, J.

The controversy is between two employes of a railroad company. The question is, Which one was negligent, the one who gave or the one who received a signal?

1. What was the signal? The signal is given by a motion of the arm up and down in a plane perpendicular to and in a line with the track; if it be a back-up signal, the motion will be directed away from the engineer and describe a circle; if it be a go-ahead signal, the motion will be toward the engineer, up and down, and the arm will describe only a quadrant or less of a circle, not a complete circle. The motion may be by the arm from the shoulder as the center or by the hand from the wrist as the center. The former is called the arm movement, the latter the wrist movement. It is manifest that the significance of the signal is determined by the direction of the motion, if not enough of it is seen to make óut a circle. " " '

It is conceded that the track was straight, the day was clear and that the conductor, Fouts, •standing on the top of the rear end of the last car, was between five and six hundred feet distant from the engineer, who was standing in his cab with his head out of the side window looking back (west) for a signal. It is not disputed that the deck line of the car next to the engine waS about four feet higher than the head of the' engineer, and that only the. head of the conductor appeared above that line, to the vision of the engineer. In this- situation Barnes saw the head of a man in the sky; he could not tell who he was, for he says he could not discern the features; and that fact is not denied but is confirmed by Fouts, who says he. could not see Barnes at the cab, although Barnes was looking against the light and Fouts was looking from the light.

Fouts testified that he gave the circular sign by the arm. movement to back up. Barnes testified that he ■ saw only the wrist movement as a go-ahead signal. By the very nature of the case and the situation of the two men, their statements are not contradictory,- for all that Barnes could see of .the circle above the roof line of the car next to him, if Fouts gave the arm movement, would be but a small arc of the circle; Fouts5 hand would be seen; against the bright afternoon sky rising and falling in the plane of Barnes5 vision. Nobody has said and nobody can say that the direction of .the circular motion would be apparent to him in an arc so short; it could not be more than one-quarter of the circle.

Consequently his testimony is the only evidence as to the signal which he received, no matter what the form of the signal which was given. His statement of what he saw, not only has not been contradicted but is not impaired by the testimony or the circumstantial evidence in the case. Granted that the motion of the hand in the arc was a movement backward and not simply up and down, we are not concerned with that fact at the end of the train} but with another fact in the cab of the engine, namely, the state of Barnes’ mind. - 'Nothing in the record nor in the state of nature raised the slightest inference that this latter fact was other than Barnes says it. was, to-wit, the' sight of the hand against the sky rising and falling above the base line of vision. That was the go-' ahead signal by the wrist movement.

This being the first essential fact in the case, and absolutely proven to be as the defendant asserts it to be, the verdict of the jury has not a jot' of evidence to support it on that branch of the issue.

2. Let us now examine the second branch of the issue. Conceding, that Fouts gave the signal as he says he gave it, was Barnes negligent for seeing the sign as he saw it? Did he omit to use the ordinary care of a prudent engineer in looking for the signal? There is not a spark of testimony that he did. Plaintiff’s theory is that the negligence of the observer is a prima facie inference from, the error of his observation; therefore, this inference supports the verdict and makes a prima facie case. But the answer to this is that there is not one syllable of evidence that the observer was negligent in the slightest particular, nor is there any evidence from which a legitimate inference can be drawn.

This question must be answered by common sense, from uniform experience. The primary', fact is that he could hot see all of the sign, if' Fouts gave it as he says he did; he saw but the upper part of it which was visible above the deck line of the car next to him, namely, a' hand up beside the .head, waving up and down, - Should: he have seen the direction of its motion, whether it was circular and backward ?

He could not see the curve of motion in the vertical plane - of vision. A visual image and its changing position up .and down, was all that the eye saw and all that the brain knew by sight. The variation of- the color and contour of the image and especially the figure described by its motion were necessary to show that it was the backward sign. ■ These phases would be added in the.mind to the original image as attributes. Thus; the successive percepts of the changing position of. hand and arm backward in a circle, would merge- into one composite mental picture, or concept. This-concept is what we say we see, whereas it is a pure' product of the mind; it is a judgment of what. we see. Barnes saw just enough of. the ■ hand’s ' motion at the side of the head to complete the short sign; he judged it to be the go-ahead'signal—which it was. He did not see the-hand and'its backward motion below the horizon of . vision. . He did not include that invisible phase in the .mental picture of what he saw. He did.-not imagine■ he saw a figure three-fourths or more of which ■ was out of sight, since what he saw-was1 completé in itself and had a definite meaning.

How Barnes, the engineer, is accused of negligence, because he failed to understand a certain gesture of the arm given him by the conductor, Fouts, at a distance and in a place where only a small part of the gesture was visible to him. Had he seen-.the whole, gesture it would have meant a back-up signalp he saw but one-fourth of it or less, a gesture of. the hand from the .wrist, up beside the head. ■ What appeared to him as. a wrist movement, he judged was not an arm move-, ment. It was a go-ahead signal, and he obeyed it. The jury found him guilty of negligence on this state of facts, because he did not imagine he saw what he did not see.

It is said he should have known the sign by the position of the hand and the curve which it described. This proposition begs the question. If the play of light and shade- upon the conductor’s head was. not' sufficient to discern at that distance whose head it was, then naturally it was' not sufficient to discern whether the palm or the back of the hand was presented—just as Barnes testifies. If the motion of the hand, through the short arc that was visible, was across the plane of vision, its direction would not be backward, and it would not mean a back-up signal. If it was in the line of vision, the direction of the circle, whether forward or backward, would not be apparent, so far away; the hand would be seen to rise and fall, which would be a go-ahead signal—just what he testified it appeared to be.

Stress is laid upon the admitted fact that Barnes was expecting a back-up signal. .This goes upon the principle of mental suggestion; which is, that when an ocular image, or a percept of any other sense, is presented to the mind, the very habit of the mind is to clothe the barren image with some attributes by which it will mean something. A common expression is that “wish is father to the thought;” the same may be said of expectation; 'But this by no means proves that if Fouts gave the sign , of á bird in its flight, that Barnes should have seen in his mind's eye. a crawfish and have, gone backwards. Suppose the last car had stopped too near the switch, which often happens, and that Fouts had given a signal to go ahead so as to' bring the fear wheels past the switch points, and. Barnes, expecting a back-up signal, had misread the go-ahead as a back-up signal, and the unexpected backward movement of the car had thrown Fouts off and injured him, would the law of suggestionhave excused him in the courts below? Why not? Because they would have said that it was his’ duty to obey the signal which was given him and not the .law of suggestion. ■ Another answer to this argument of suggestion is, though an engineer expects a signal to back into a switch,' he knows by common experience that he may have stopped short, and the instant he gets a go-ahead signal he' knows what has happened and he pulls ahead. The suggestion of expectation' is immediately corrected. Barnes says he thought he had not cleared the switch points. Barnes is not a psychologist nor expert in the art of introspection. Because he could not explain the natural operation of his own mind as he would the mechanical operations of his engine, that is no reason in the world that the state of his mind, at the time he saw the conductor's head and hand above the cars, was not-just’ what he says ‘ it was. As we have- 'already said,: it is impossible for anybody, by any method of proof, mental or physical, to' impeach his statement of whát he saw. The verdict of the jury is not' only unsupported by any evidence 'but it is also directly contrary, to the evidence. '

The plaintiffs counsel tried to break the conclusive effect of Barnes’ statement by drawing from him this rule of the service, to-wit: “In case of doubt or uncertainty, the safe course must be taken and no risks run.” This argument also begs the question. It implies that Barnes must have been in doubt about what he saw. But such is not the fact. Barnes testifies promptly and positively that he had no doubt at all. Counsel seems to have the notion that because Barnes saw only the conductor’s head and could not have seen the full signal, therefore if he had been duly cautious he would have been in doubt and should not have acted. Manifestly that deduction would be right if the only part of the signal which he saw was ambiguous, but the part he saw was exactly the go-ahead sign, and therefore was not ambiguous. So that this circumstance does not afford a scintilla of proof to support the verdict.

'3. Now we come to the third branch of the issue, namely, contributory negligence. By the plaintiff’s method of cross-examination of the engineer, he gave the deathblow to his case.' He attempted to make apparent that it was negligence for Barnes to receive a signal • given as and where that signal was given; that he should not have acted upon an imperfect signal. This argument clearly puts the ..fault of negligence upon the plaintiff, the conductor. For, if the signal could not be given perfectly or completely to the engineer from the top of the car at that distance back from the engine, he should’ not have got upon the car to give the signal, but should have given it from the ground, where all of it could’ have, been seen distinctly. He was superior in rank to the engineer, and it was his duty to communicate his orders to his inferior so that they could not be misunderstood and bear a contrary meaning. If he gave half an order só that it appeared to be a whole order with nothing left off, that was his own blunder, due to his reckless choice of an imperfect method of communicating his commands.' It is therefore absolutely clear on the record of the whole case that whatever negligence may be imputed to these servants, it belongs to the superior in service, the conductor, who is in charge of the train; for his was the initial act which was the direct, proximate and efficient cause of his injury; the engineer was his innocent agent to carry out his will. He expressed his will one way though he intended the opposite.

As an excuse for giving the' signal from the top of the car, the plaintiff says he got up there so as to be the better able to direct the movements of the train when it would enter the curved siding. But this does not explain why he should give the signal from the top of the car, on a straight track, before it entered the siding. He admits the signal could have been given in a more favorable circumstance and to better advantage from the ground. The fact that he offered any excuse at all is a confession that the act was wrong.

He further says that he stood at the edge of the car and leaned out to make the signal, but he admits that he could not see the engineer, whose head stuck out of the cab window. The record shows the car next the engine about two feet wider than the cab. How then could the engineer see him past the edge of the car? The proof shows that by a rule of the road it was his duty to place himself in full view of the engineer before attempting to give a signal. He says he leaned out from the edge of the car as far as he could. But there is no evidence that he, on the eleventh car back, without anything to hold to, could lean out far enough to make the vertical circle with his arm so it could be seen from the cab window. Possibly it might be done, but the verdict can stand only upon some proof of what was done, not upon conjecture of what might be done.

Now let us suppose that this conductor, Fouts, had brought his action against his engineer for damages to compensate him for the loss of his leg, which he could have done; for if Barnes’ negligence caused his injury, Barnes is primarily liable to pay for the wrong, and the employer is only responsible secondarily. Had he sought to enforce this primary liability first, would the jury have found Barnes guilty and condemned him to pay his conductor $7,500 for the loss of his leg? If. such a verdict would not be just and lawful against Barnes of course it can not be against his employer, the railroad company. •

Objection is made that the record does not present to us all the evidence in the case; that concrete evidence of the signal was given to the jury by ocular demonstration in the court room, and that this exhibition of the real thing is more reliable than word pictures of it. This objection is untenable and it points out the very source of the error of the lower courts. It was a mistake to let the plaintiff attempt to reproduce in view of the jury in the court room the signal which he thought he gave. The controversy was not about: how he made the signal, but how it appeared to the engineer in his situation in the open country, as seen against a bright afternoon sky at five-hundred to six hundred feet distant when only the head and hand of the conductor were visible. What the jury saw close at hand within doors under a subdued light was a distinctly different thing than that which was presented to Barnes, against a bright sky, five to six hundred feet away.

This sort of evidence is called “autoptic” or “real” proof, to distinguish it from testimonial and circumstantial proof. In his Pocket Code of Evidence, page 31, Wigmore says: “In the latter classes the tribunal is asked to make an inference from the evidential fact to some other fact, while in the former the tribunal is asked to perceive immediately by the senses without inference.” Would anybody be bold enough to say that the jury could directly perceive in this mimicry in the court room, without the proper stage accessories, exactly how Fouts’ gestures on top the car looked to Barnes in the cab ? The exhibition was deceptive and misleading. The exclusion of it from our view of the case, instead of impeaching our judgment, affords the substantial reason of our judgment; by exposing the initial essential error of the courts below.

Judgments reversed, and judgment for plaintiff in error.

Shauck, C. J., Johnson and Donahue, -JJ.j concur. Newman, J., dissents.

W an am aker, J.,

dissenting. Fouts, a conductor of a B. & O. freight train, brought suit against the railroad company for the negligent moving of his train contrary to and in violation of his own signals, whereby he was thrown from the top of a box car and lost his leg.

The case was tried to a jury before Honorable George F. Robinson, judge of the common pleas court of Mahoning county. The jury found the railroad company was proven negligent by a preponderance of the evidence and returned a verdict in favor of Fouts for $7,500. A motion for a new trial was promptly made by the railroad company, one of the grounds for which was that the verdict was contrary to the weight of the evidence. Judge Robinson, one of the ablest and oldest (in point of service) judges of the state, had seen the witnesses face to face and considered their credibility as only a trial judge can. He saw the signals demonstrated before the jury, both as required by the rules of the company and as they were given on the day of the injury. With all these witnesses before him and these unusual opportunities for weighing the testimony Judge Robinson sustained the .verdict and entered judgment thereon.

The railroad company prosecuted error to the circuit court. All three judges affirmed the court of common pleas. Then the railroad company prosecuted error to the supreme court, and this court now reverses the finding of the jury of twelve, the trial judge and the three circuit judges and holds “This was not negligence on the part of the engineer;” that is, the railroad company.

The judgment' of the four supreme judges, having greatly inferior opportunity to understand, apply and weigh the evidence, not being able to judge of the credibility of the witnesses because of never having seen or known them, now reverses the action of both lower courts and the jury, and then enters final judgment for the railroad company.

This is a most drastic doctrine. ' Indeed it is well nigh revolutionary.

Since when has the supreme court acquired the right to say in any given concrete case, what is negligence and what is not negligence?

Questions of negligence are questions of fact for the jury and not questions of law for the court; at least, this court has often so decided, and indeed within a six-month so declared in the case of Gibbs v. The Village of Girard, ante, 34, the fourth paragraph of the syllabus reading as follows: “What is ordinary care, what is reasonable safety, and the like, are, in the first instance, usually questions for the determination of the jury under proper instructions by the court, appropriate to the particular circumstances of each case and the issues thereof.”

Now we have a rule in this court, with which all lawyers at least are familiar, that we will not weigh the evidence. Two courts below having passed upon it their decision is ■ final, and, therefore, the only way there can be a review of a question of fact below is to hold that there was absolutely no evidence on some one or inore essential elements of the plaintiff’s case. ' But it will be noticed that that is not the finding or holding of the majority in the syllabus of this case. The language of the syllabus is: “This was not negligence on the part of the engineer.”

This court does not and could not hold that there is no evidence of negligence to be submitted to the jury, but it invades the province and duty of the jury by weighing and considering the whole evidence and holding that it does not show negligence against the railroad company. This usurpation by this court of the functions and rights of the jury and the parties to the suit is contrary to settled rules and practice of this court, and contrary to the provisions of both state and federal constitutions.

It is unfortunate that the statement of fact appearing in the syllabus is not the fair statement to which the plaintiff is entitled, for it is quite clear that either in determining whether or not there is any evidence, or whether there is sufficient evidence to support a verdict, the plaintiff is entitled to the most favorable construction as to the facts and as to the inferences drawn from these facts; for the jury evidently believed the plaintiff, whom they had before them, and disbelieved the defendant. The difficulty with the statement appearing in the syllabus is that the viewpoint of the court is the viewpoint of the railroad company and of Barnes, its engineer.

Now, the verdict of the jury, together with the judgment of the trial judge, involves a disbelief of the railroad company’s contentions through Barnes, its engineer, because the railroad company’s own case was practically made out of Barnes, and if the jury believed Barnes it is reasonable to suppose that it would have found for the railroad company. The jury had all these witnesses before them, observed their tone, their manner, their general bearing in giving their testimony, their frankness or hesitation in testifying, and from all these things were able to give each witness the credibility to which he was entitled-, which facts as affecting credibility could not be put in the record at all and which certainly gave the jury advantage over this court in weighing that evidence.

This court is now wholly believing the engineer’s testimony, whom they never saw and do not know. This engineer was certainly as much interested in the result of this-suit as was Fouts, because the negligence of the railroad company was practically the negligence of the engineer. Of what avail, pray, are juries anyhow, if they are not to weigh the facts in the light of the credibility of the witnesses who testify? Every lawyer and every judge, and indeed every one familiar with courts, know to what extent perjury is practiced in our courts of to-day. In a large number of cases courts and juries in effect do find that certain witnesses really commit perjury and, therefore, wholly disregard their evidence. They come to this conclusion from their appearance and manner and bearing when on the witness stand, but a reviewing court, that cannot see and hear the witnesses, is not in a situation to so weigh the evidence and fix the credibility of the witness'.

I have already indicated that the statement of fact appearing in the syllabus of this case is not a fair statement; by that I mean it is not fair to the plaintiff and is more than fair to the railroad company. What are the facts as testified to by Fouts and his witnesses? for Fouts is entitled to the most favorable aspect in which this testimony could be considered so far as this judgment of the supreme court is concerned.

The train was made up of ten to twelve box cars standing still on a straight east-and-west track, with the engine headed east. The engineer was on the right or south side of his cab. The conductor, Fouts, had climbed on top of the most westerly car, and testifies that he went to the south edge of the car, leaned out as far as he could and gave the usual “back-up” signal, and demonstrated before the jury how he gave it. Fouts further testified that that was “good railroading,” and two of the defendant’s witnesses, Daugherty and Wolfsberger, in answer to a hypothetical question, not objected to by the able and vigilant counsel of the railroad company, answered that that was “good railroading;” that is, giving the signal where Fouts gave it and in the way he gave it.

Now, how can it be said that the conduct of Fouts, in relation to the place he gave the signal and the manner in which he gave the signal, was “good railroading” in the judgment of the company’s own experts, and at the same, time a violation of a “rule of service” that required the conductor to put himself in plain view of the engineer when giving the signal, as stated by this court in the syllabus of this case? I prefer the judgment of the plaintiff himself, corroborated as it is by two practical railroad men who were witnesses for the railroad company, as to what is “good railroading,” rather than the judgment of this court. How can Fouts’ conduct on a box car in giving a signal be conformable to “good railroading” and at the same time Fouts be guilty of contributory negligence in that behalf, as the majority opinion contends ?

Much is said in the majority opinion about “arc of circle,” “plane of Barnes’ vision,” “variation of the color and contour of the image,” “successive percepts of the changing of hand and arm backward -in a circle would merge with one composite mental picture or concept,” “ocular image,” “art of introspection,” and the like, but to my mind the simple, uncontradicted evidence that Fouts was on the south edge of the car, leaning out as far as he could to the south and then with his right arm gave the usual “back-up” signal required by the rules of the company, that not only Fouts but two of the defendant’s witnesses say that this was “good railroading,” and that thereupon, without any further signal, the engineer moved the train forward contrary to Fouts’ “back-up” signal-such evidence was evidently more convincing to the men who composed the jury and to the trial judge, who heard and saw the witnesses, than any far-fetched, over-refined, technical treatise on the laws of light, vision and mental suggestion presented in the majority opinion..

If. now, the “back-up” signal was given at a proper place and in a proper way, why .was the train moved the wrong way? Because. Barnes did not obey or follow the signal. Why not? Either because of a temporary forgetfulness that happens to all men, even to train dispatchers who have the most important duties to perform, or because he did not get his head out of his cab window far enough to see the whole signal' as he could and should have done, since three witnesses testified that this was “good railroading” on Fouts’ part. If this was “good railroading” on Fouts’ part then Barnes was certainly the negligent party in not putting himself where he could see the signal clearly, or else waiting until he did get a clear signal before he moved the train, as the rule of the company required.

Barnes took the risk of moving the train, according to his own testimony, knowing that in all probability that the man whom he saw on top of the car, if he had prepared himself for a backward movement and the train went forward, would in all probability be injured by being thrown from the car. But Barnes moved the train forward when there was no occasion for its forward movement, nor no signal for its forward movement— at least the jury so found.

Now, if Barnes saw only a small fractional part of Fouts’ signal and interpreted it as a “go-forward” signal, as he claims, Barnes knew or should have known that such signal, appearing to him as a “go-forward” signal (as he says), might also be the upper or fractional part of the “back-up” signal, which latter was the signal he was looking for. His plain duty in such a situation was to wait until the signal was clear and definite; until he "knew whether what he saw was the whole of the “go-forward” signal or the fractional part of the “back-up” signal. He knew or should have known that to move the train the wrong way was to imperil'the life of the man whom he saw on the box car. ■

If Barnes had put his head and upper body out of' the .cab window, as good railroading would require when a signal is in doubt, then there' would have been no mistake in the signal and no injury to Fouts.

There is such a persistent effort to uphold Barnes in the case that occasionally the facts in the record are inadvertently misstated. One incident will illustrate. The majority opinion speaks of Barnes’ view being hindered by looking against the light. Now, be it remembered that this injury occurred at noon,. that in all human probability if this track was east and west, as the record shows, and Barnes was on the south side, Fouts was to his west, and we have no information that the sun was not in its usual position to the south. If that be true, it is difficult to understand how Barnes was looking toward or into a degree of light that' impaired hís vision, as suggested in the majority opinion.

Let us apply another test. When the plaintiff had offered evidence showing, or tending to show, that he gave a proper “back-up.” signal from the right' side of the top of the rear box car,' extending his body as far southward as he could; that the engineer was on the same side of the train; that; the place and manner of- giving the “back-up” signal was in accord with “good railroading;” that after giving the signal he poised and balanced his body to meet the sudden movement of the train pursuant to such “back-up” signal; that the train was thereupon, contrary to the conductor’s signal, moved forward instead of backward, causing plaintiff’s injury, and that the rule of the company, admitted by Barnes to be correct, required the engineer to be sure of his signals before he moved the train—all these facts most clearly and conclusively make a prima facie case of negligence against the railroad company. Who dare contend that this does not make a clear, prima facie case against the railroad company? If this is not a prima facie' case, pray what would make a prima facie case? What element is lacking to make a prima facie case?

No one has contended before this court that the trial judge should have directed a verdict at the close of the plaintiff’s case, and the majority opinion nowhere indicates that such direction should have been made by the trial judge at the close of plaintiff’s case. If the defendant had not offered any testimony it must follow most conclusively that Fouts was entitled to a verdict, and the question, simply was, how much?

But it is contended that because Barnes, the engineer, who testified for the defense, says that, in perfect good faith, he understood the signal as meaning go forward, therefore the prima facie case of negligence is overcome; yes, more, is absolutely eliminated, and there is now no evidence of negligence.

That is a new rule of practice, a new rule of-inference, presumption and deduction. It is an astonisher in the laws of logic. All that Barnes’ testimony could possibly do would be to make it a question for the jury, one for them to determine whom to believe and whom not to believe, and to what degree to believe them. They were in a position to do that because of seeing and hearing the witnesses, but we are not.

It is a primary fact in the great majority of cases of negligence that there is no bad faith, no malice, no willful intent, but quite the contrary. But still it is negligence. To say that Barnes’ evidence claiming good faith per se destroys the plaintiff’s evidence is about as plausible a deduction as to say that Barnes ordered the fireman to burn up the plaintiff’s evidence so that by the time it reached the court it would be merely ashes and cinders.

This proposition is absolutely too ridiculous to need any further comment. Its absurdity is apparent on first analysis. When the plaintiff had' made a prima facie case it then became a question for the jury, and nothing that the defense could possibly offer by way of denial, explanation or mitigation could or would destroy the right of the plaintiff to have his case submitted to the jury upon the evidence in the record. It being a case for the jury it is not a case for this court, which should not weigh the evidence in cases of this character.

•'But again, it is impossible for this court to have before it in this record all the evidence that was' offered in the trial court. Both Fouts and Barnes repeatedly demonstrated the various signals, “backup” signals and “go-forward” signals, so that the jury and trial judge could understand by manual illustration just what those signals were and how they were given. Of course, it is folly to say that such demonstrations could be reproduced in this record. The majority opinion, however, seeks to overcome this infirmity by holding that this evidence as offered in the trial court was incompetent, though there is no such holding in the syllabus. The reason assigned in the opinion for its incompetency is that the conditions under which the signals were given on the day of the injury and on the day of the trial were entirely different. The record does not disclose any objections to these demonstrations, but even if it did, this character of evidence has always been recognized as of the very highest and most convincing type. If the doctrine of the majority opinion be true, then before such evidence could be given a railroad track, train and engine would have to be built in the court room before the jury could be put in the situation of the parties and before the parties could demonstrate their various signals and movements in connection with the operation of the train. The absurdity of this contention is too apparent to need any argument whatsoever.

During the preparation of this opinion I have again carefully gone over the very able and learned brief of counsel for The B. & O. Railroad Company. Under the head of “Argument” the following subheads appear as the contentions of the railroad company, first, “No negligence or want of ordinary care shown on the part of the engineer.”

I claim that this involved no more than the determination and conclusion of fact for the jury. It is not claimed here that there was no evidence of negligence or want of ordinary care.

The second subhead of plaintiff in error’s brief is as follows: “Failure of the conductor, Charles H. Fouts, to exercise ordinary care, the sole proximate cause of the accident.”

If the question of negligence as against the railroad company is a question for the jury, clearly it must follow by parity of reason and law that the question of negligence upon the part of the plaintiff is also a question of fact for the determination of the jury, and, of course, it is uniformly held that the question of proximate cause of the injury is a question also for the jury.

The third subhead deals with the “Law applicable to the case,” whether or not this cause of .action is governed by the federal employers’ liability act of 1908, or whether it is governed by the Ohio Metzger act of 1908.

The remaining subhead is “Requests to charge before argument,” and the last the “Interrogatories” that the court refused to submit to the jury.

Nowhere in the brief of counsel for the railroad company is any claim made that there was no evidence of negligence against the railroad company to be submitted to the jury, but that the evidence as a whole does not show negligence against the railroad company.

Negligence being a conclusion of fact from the facts proven, it was unquestionably for the jury to determine, and therefore not a question for this court.

I want to make another contention here. I think it is high time that the same be made.

We presumably have in this country a constitutional guaranty of the right of trial by jury. This right is declared and safeguarded in the federal constitution as well as in every state constitution, the language generally being that “the right of-trial by jury shall be inviolate.” The judgment of this court absolutely and squarely violates that constitutional provision. The supreme court of the'United States has dealt with this same question in a comparatively recent case, decided April 21, 1913, Slocum v. New York Life Insurance Co., 228 U. S., 364, the syllabus of which reads as follows: “The power of a Federal court to re-examine issues of fact tried by a jury must under the Seventh Amendment be tested by the rules of the common law.

“Under the rules of the common law an appellate court may set aside a verdict for error of law in the proceedings and order a new trial but it may not itself determine the issues, of fact.

“Under the rules of the common law when the court sets aside a verdict' there arises the same right of trial by jury as in the first instance. ■

“In the trial by jury, the right to which is secured by the Seventh Amendment, both the court and the jury are essential factors.

“Whether the facts are difficult or easy of ascertainment is immaterial, the guaranty of the Seventh Amendment operates to require the issues to be settled by the verdict of a jury unless the right thereto be waived.”

As vigorously as I can I desire to contend against this judgment on constitutional grounds, because:

First. It violates both federal and state constitutions, in that this court here undertakes to re-examine and reconsider the evidence and find the same contrary to the finding of the jury and trial judge.

Second. After making such unwarranted finding, contrary to that of the trial court, this court has gone the limit and rendered final judgment contrary to the verdict of the jury and the judgment of the trial court thereon, and contrary to both state and federal constitutions. If, now, this court has any right, in violation of its own rule and the plaintiff’s constitutional rights, to reverse the case upon the weight of the evidence, it most certainly cannot have the right to enter final judgment and forever foreclose the defendant from a further right to submit his case to a jury.

I am not unaware of the fact that an appellant court has often heretofore assumed the right to reverse the judgment of a jury and the judgment of a trial court on the ground that the verdict is against the weight of the evidence, and also then to enter the judgment that it believes the trial court should have entered. But I here and now challenge the right of any appellate court to do either under the provisions of the constitutional guaranty of the right of trial by jury. The assertion of this right is not only sanctioned in some jurisdictions by long practice, but it may be said that it is further fortified by the provisions of our statutes authorizing a new trial upon the ground that the verdict is against the weight of the evidence. But I desire to deny the constitutionality of any such statute in derogation and violation of the rights of the parties to a trial by jury. Such an assertion of right as is contended for here by plaintiff in error amounts to a denial and defeat of the right of trial by jury. It is in effect a mere mockery to say at their pleasure appellate courts may ignore the verdict of the jury and substitute therefor their own judgment upon a mere question of fact, when the constitutional provisions have all endeavored to safeguard the rights of all parties so as to make all questions of fact in suits at law triable by jury as it was under the old common law. This contention in the federal case last referred to I ardently support.

I want to quote briefly from the majority opinion in that case and invite all interested counsel and. parties to carefully read the entire opinion, minority as well as majority. ! pause here to suggest that, on the matter of law, so far as applicable to the case at bar, there is no essential difference between the two opinions, the minority opinion being founded upon the claim that, upon the whole record, there was no issue of fact to be submitted to a jury; that the facts are substantially all conceded, and that, therefore, it became a question of law for the court. But the majority opinion held that notwithstanding the trial court should have directed a verdict in accordance with the finding of the circuit court of appeals, still the circuit court of appeals had no right to assume the question of fact and enter final judgment, but, upon the contrary, it was their duty to remand the case to the trial court for another trial by jury.

Judge Van Devanter quotes freely from the case of Parsons v. Bedford, 3 Pet., 433. The opinion is by Mr. Justice Story: “Trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy * * *. One of the strongest objections originally taken against the Constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the Constitution was adopted, this right was secured by the Seventh Amendment of the Constitution pro-, posed by Congress, and which received an assent of the people so generally as to establish its importance as a fundamental guarantee of the rights and liberties of the people. . * * * The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue'was tried, or to which the record was properly returnable, or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings."

In Walker v. New Mexico, etc., Railroad Co., 165 U. S., 593, decided in 1897, Justice Brewer said: “Its aim [Seventh Amendment] is not to preserve mere matters of form and procedure but substance of right. This requires that questions-of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative. * * *

“Now a general verdict embodies both the law and the facts. The jury, taking the law as given by the court, apply that law to the facts as they find them to be and express their conclusions in the verdict. The power of the court to grant a new trial if in its judgment the jury have misinterpreted the instructions as to the rules of law or misapplied them is unquestioned, as also when it appears that there was no real evidence in support of any essential fact. These things obtained at the common law; they do not trespass upon the prerogative of the jury to determine all questions of fact.”

In Capital Traction Co. v. Hof, 174 U. S., 1, decided in 1899, Mr. Justice Gray holds to the same doctrine.

Judge Van Devanter, after, reviewing these numerous cases, uses this language: “These decisions make it plain, first, that the action of the Circuit Court of Appeals in setting aside the verdict and assuming to pass upon the issues of fact and. to direct a judgment accordingly must be tested by the rules of the common law; second, that, while under those rules that court could set aside the verdict for error of law in the proceedings in the Circuit Court and order a new trial, it could not itself determine the facts; and, third, that when the verdict was set aside there arose the same right of trial by jury as in the first instance. How, then, can it be said that there was not an infraction of the Seventh' Amendment? When the verdict was set' aside the issues of' fact -were left undetermined, and until they should be determined anew no judgment on the merits could be given. The new determination, according to the rules of the common, law, mould be had only through a new trial, with the same right to a jury as before. Disregarding those rules, the Circuit Court of Appeals itself determined the facts, without a new trial. Thus, it assumed a power it did not possess and cut off the plaintiff’s right to have the facts settled by the verdict of a jury.

“While it is true, as before said, that the evidence produced at the trial was not sufficient to sustain a verdict for the plaintiff and that the Circuit Court erred in refusing so to instruct the jury, this does not militate against the conclusion just stated. According to the rules of the common law, such an error, like other errors of law affecting a verdict, could be corrected on writ of error only by ordering a new trial. In no other way could an objectionable verdict be avoided and full effect given to the right of trial by jury as then known and practiced. And this procedure was regarded as of real value, because, in addition to fully recognizing that right, it afforded an opportunity for adducing further evidence rightly conducing to a solution of the issues. In the posture of the case at bar the plaintiff is entitled to that opportunity, and for anything that appears in the record it may enable her to supply omissions in her own evidence, or to show inaccuracies in that of the defendant, which will rightly entitle her to a verdict and judgment in her favor. * * *

“In the trial by jury, the right to which is secured by the Seventh Amendment, both the court and the jury are essential factors. To the former is committed a power of direction and superintendence, and to the latter the ultimate determination of the issues of fact. Only through the co-operation of the two, each acting within its appropriate sphere, can the constitutional right be satisfied. And so, to dispense with either or to permit one to disregard the province of the other is to impinge on that right. * * *

“To the suggestion that in so holding we are but adhering to a mere rule of procedure at common law there is a twofold answer: First, the terms of the Amendment and the circumstances of its adoption unmistakably show that one of its purposes was to require adherence to that rule, which in long years of practice had come to be regarded as essential to the full realization of the right of trial by jury; and, second, the right to a new trial in a case such as this, on the vacation of a favorable verdict secured from a jury, is a matter of substance and not of mere form, for it gives opportunity, as before indicated, to present evidence which may not have been available or known before, and also to expose any error or untruth in the opposing evidence. As is said in Blackstone’s Commentaries, vol. 3, p. 391: ‘A new trial is a rehearing of the cause before another jury. * * * The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case.’ ”

In conclusion, I contend that the verdict of the jury is abundantly supported by the evidence as contained in the record of the case; that, if it were not so supported in the judgment of this court, we have no legal or constitutional right to nullify or set it aside on the mere ground that it is against the weight of the evidence; that we have absolutely no right to enter final judgment contrary to the verdict of the jury; and that, finally, by the judgment of the supreme court, we have amended the Ohio Constitution, Article I, Section 5, Bill of Rights, which reads, “The right of trial by jury shall be • inviolate,” by adding thereto as “court-made” constitution the words, “except in cases where the trial judge or some appellate court thinks otherwise as to the facts in the case.”  