
    JOHN K. COWEN and OSCAR G. MURRAY, Receivers of the Baltimore and Ohio Railroad Company, vs. CLINTON WATSON.
    
      Contributory Negligence — Driving Under Railway Bridge While Train, Whose Approach Could Have Been Seen, was Passing Overhead — Blowing Whistle of Train on Railway Viaduct Over County Road — Waiver of Exception to Refusal to Take Case from the Jury at End of Plaintiff’s Testimony.
    
    Defendant’s railway crossed a county road by a viaduct 80 feet high, near a point where it was necessary for the engine driver to give signal by whistle before crossing a bridge over a river. Ordinarily, the whistle was blown by engines before the viaduct was reached. The tracks in both directions were visible from the road below. Plaintiff was driving a wagon with two horses on this road and while he was under the viaduct the whistle of a passing train- was sounded twice directly overhead, whereby the horses became frightened and ran away, causing the injury for which this action was brought. ' Held, that although the defendant was guilty of negligence in blowing the whistle directly over the said crossing, instead of before reaching or after passing it, yet since the plaintiff could have seen the train approaching and avoided going under the viaduct while it was passing overhead, and moreover because he was walking alongside of the horses and not seated in the wagon, he was guilty of such contributory negligence as precludes a recovery.
    When the defendant at the close of plaintiffs’ evidence offers a prayer asking the Court to take the case from the jury, and, although excepting to the action of the Court in refusing it, yet proceeds to offer evidence in defense, he thereby waives the exception.
    Appeal from the Circuit Court for Cecil County (Stump and Martin, JJ.) The plaintiff obtained a verdict and judgment thereon for $2,083.
    The cause was argued before McSherry, C. J., Fowler, Briscoe, Page, Boyd, Schmucker and Jones, JJ.
    
      John S. Wirt and W. Irvine Cross, for the appellants.
    A careful examination of the plaintiff’s testimony will show that as he was passing along the public road, which runs under the east end of the B. & O. Bridge across the Susquehanna River, his horse was frightened by the whistle of the engine. There is no evidence whatever that such whistling was unnecessary, or was the result of want of reasonable care on the part of the defendant’s servants in -the management of its trains. Yet such proof of negligence on the part of the defendants was an essential part of the plaintiff’s case. Frech’s case, 39 Md. 576; Foy's case, 47 Md. 76; Burns’ case, 54 Md. 113; Miller’s case, 58 Md. 224; Barnard’s case, 60 Md. 559; Stebbing’s case, 62 Md. 515; Savington’s case, 71 Md. 599; Pumphrey’s case, 72 Md. 82; Duvall's case, 73 Md. 516; Good’s case, 75 Md. 526; Burkhardt’s case, 83 Md. 522.
    The sounding of the whistle of the engine is a necessary and usual incident of the running of trains. The train of the defendants was lawfully on its bridge, and the plaintiff’s horse was frightened by the noise of the whistle of the engine, which the defendant’s servants had a right to sound in the reasonable and careful management of its trains. It is for the plaintiff to show that the whistling was unusual or unnecessary. This he utterly fails to do. On the contrary he admits that he was very familiar with the crossing for fourteen years and had heard engines give the two sharp whistles as the trains approached the signal tower at the east end of the bridge. While the plaintiff states that he did not hear the long whistle of the engine, it seems to us that is immaterial in view of the fact that he admits that he saw the train when within twenty-five feet of the bridge, yet went on under when he knew it was the custom for the engine to give the two blasts of the whistle which frightened his team. While the plaintiff says that he was 23 feet from the railroad, it is clear if he had looked when he passed the north end of the ice-house he could have seen the train at a distance of at least 50 feet from the bridge. He states that his horses were used to the cars and that on this occasion his horses were not frightened by the appearance or noise of the train, but went under the bridge, and after they had •passed undergone of them was frightened by the two blasts ■of the whistle, or rather by the second blast.
    The mere sounding- of a locomotive whistle at a crossing or other places where teams are likely -to be frightened .thereby is not -of itself negligence, and the plaintiff having the burden-of proof of negligence must show that it was •done under such circumstances as made it at that time negligent. Wood’s Railway Law, vol. 2, page 1332; Cincinnati, I., St. L. & C. R. Co. v. Gainers, 104 Ind. 526; Cahoon v. Chicago & N. W. R. Co., 85 Wis. 570; P., W. & B. R. R. Co., v. Stinger, 78 Pa. St. 219; Favor v. Boston & L. R. C., 114 Mass. 350; Lamb v. Old Colony R. R., 140 Mass. 79.
    ■ In this case the plaintiff was approaching an overhead crossing where his view of westbound trains was totally .obscured, and his view of eastbound trains was partially obscured. He was required to-be vigilant in the use of his senses and to use due care. Yet we find him, when he got behind the ice-house, alighting from his wagon and putting himself in a position where he could not well control his team if frightened.
    Under the circumstances the view of trains being obscured was the duty of the plaintiff to stop, look and listen. He admits that he did not stop, and his failure to do so is such contributory negligence as disentitles him to recover.
    The rule is well settled that the failure to look and listen as one approaches a railroad crossing is negligence per se. But it is not negligence per se to fail to stop in all cases, although some Courts have held it to be so. It is difficult to lay down a rigid rule for all cases. It depends upon the circumstances of the particular case whether the failure to stop is such an act of negligence on the-part of the plaintiff as will justify the Court in taking the case away from the jury. There are such cases, and we think the present case is one of them. P., W. & B. R. R. Co. v. Hogeland, 66 Md. 161.
    The plaintiff also states, as a matter within his knowledge, that some days this whistle could be heard at the ice-houses and some days it could not, when the wind was. northeast. With this knowledge on the part of the plaintiff, he certainly did not use due care in approaching this crossing, because he did not stop and listen while his team was behind the ice-houses. The danger to life and limb of the traveling public who have to cross railroads at grade is great, andas the country becomes more thickly settled these accidents multiply. As a matter of sound policy it is desirable that the tracks of railroads, so far as practicable, should pass over or under public highways. There is then no danger of actual collision between the train and the team of travelers on the highway, and that element of danger is eliminated. But trains passing over or under teams are very liable to frighten horses. In most cases of such crossings the traveler has a better opportunity to see and hear the train than the train employees have to see and hear the former. The traveler is still liable to accident by having his team frightened, and if the rule of care for approaching crossings is relaxed, then an additional burden is put upon railroad companies, as they would be held liable for every accident resulting from frightened teams, where the plaintiff is willing to swear that he did not hear the whistle of an approaching train. Such crossings as a rule are expensive, and railroad companies will not be disposed to put in overgrade crossing, if thereby they materially increase their liability for damages resulting from frightened teams. There being no danger of collision, the disposition of a traveler is not so strong to listen for the whistle or to heed it when he is driving a team which is used to the cars. This was the present case. The plaintiff had confidence in the team, saw the train, but voluntarily went under the bridge. He assumed a risk, the consequence of which he should bear and not the defendants.
    
      Joshua Clayton and Albert Constable, Jr. (with whom was Albert Constable on the brief),, for the appellee.
    There was certainly evidence that the defendants’ train failed'to signal its approach to the county road. And'this was negligence according to all the authorities. Norton v. Eastern R. R., 113 Mass. 366; Prescott v. Eastern R. R., 113 Mass. 370; The Penn. R. R. v. Barnett, 59 Pa. St. 259. Then, it was proved, and not denied by defendants, that as the train which frightened plaintiff’s horses passed over the county highway, two sharp blasts of the locomotive steam whistle were sounded directly over the horses’ heads. That certainly was, prima facie, a negligent act. P., W. & B. R. R. v. Hogeland, 66 Md. 162; Fullarton v. Manchester, South Junction, etc., Ry. Co., 14 Common Bench (N. S.) 54; Lamb v. Old Colony R. R., 140 Mass. 81.
    As to this act of sounding the whistle directly over the highway it was, no doubt, open to the defendants to show that it was ah act necessary to be done, at that place, in the reasonable and proper conduct of their business. But undeniably it was a dangerous thing to give sharp blasts from a locomotive steam-engine directly over a county highway where travelers might be passing at any moment with horses and teams liable to be frightened and to run away. It was, therefore, prima facie evidence of negligence. The proof was, that for a mile and ’more across this bridge to the Harford shore, from which direction the train came, the track was perfectly straight, and there was, therefore, no reason for sounding the whistle at the point where the bridge crosses the county road. Indeed, the evidence of both plaintiff and defendants’ shows that the whistles, on engines passing eastward across the bridge, were always sounded while the trains were passing over the water and several hundred yards before reaching the Cecil shore. There was evidence in the case that no whistle, prior to this accident, had ever been sounded by an engine when in the act of crossing the county highway.
    Defendants rely on plaintiff’s omission to stop while he was passing over the 198 feet where his view was cut off by the ice-house. But the conditions must be recollected :. As he came up the Perryville road he first came to the fértilizer works. Then, after passing them, there was an unobstructed view of the bridge almost to the Harford shore. The space between the fertilizer works and the ice-house was 530 feet. As he drove his horses at a walk the 530 feet he both looked and listened for a train, but none was within sight or sound. Of course, it was unnecessary to stop in this 530 foot space, as he could see perfectly well without stopping. Passing over this space, he next came to the ice-house. He was at that time 272 feet from the bridge. For the first 198 feet the ice-house cut off his view toward the Harford shore. At 75 feet from the bridge he came from behind the ice-house, but could get no view until he had gone 20 feet further. He was then 50 feet from the bridge, had a clear view, and saw the train coming across the river, distant several hundred yards from the public road. Now, it cannot be reasonably contended that he was bound to stop while he was traversing the 198 feet behind the ice-house. Why should he stop there? Not for observation certainly, for he was behind the ice-house. Not to listen, for it was a smooth road, and his team was proceeding slowly in a walk. Even the Pennsylvania cases, in regard to grade crossings, do not go to the extreme of requiring that a traveller should stop at a point where he can get no view. On the contrary, it has repeatedly been held in that State, that a traveller, approaching a grade crossing, will not, by stopping at a point where the view is obstructed, be free from the imputation of negligence. The first point at which he could have seen a train coming across the river was 20 feet beyond the ice-house and 50 feet from the bridge. Was he bound to stop there? If so, why? He then saw and knew the exact location of the train. For what purpose should he have stopped there ? Not to observe. Not to listen. All that his senses could have brought him, he already knew. It is clear that, up to the moment he came to this point, 20 feet beyond the ice-house, 50 feet from the bridge, there had been no negligent act or omission on his part. Now, the question comes, should he have remained at' that point, within 50 feet of the bridge, or should he have gone on?
    Plaintiff in going forward instead of remaining where he was, was not going from a place of safety into a place of danger. It was obviously dangerous to remain where he was. Facing the train elevated so high in the air above their heads, the situation for his horses was one to which they had never been accustomed, and plaintiff felt uncertain as to their behavior. But in going forward he felt the confidence of a man who treads his accustomed paths. How can it be possibly said that plaintiff■ was bound to try the experiment of permitting his horses to face a moving engine and train of cars elevated eighty feet above their heads at a distance of fifty feet ? The bravest and most experienced of Pratt street dray horses might -well be distrusted in such a position,
   Fowler, J.,

delivered the opinion of the Court.

The plaintiff was injured on the 16th of November, 1898, under the following circumstances: He was driving two horses attached to a wagon which was loaded with coal. As he passed under the bridge over which the track of the Baltimore and Ohio Railroad crosses the Susquehanna river his horses became frightened, ran away and he was badly injured. At the point where the accident happened a county road passes under the bridge — the latter being elevated about eighty feet above the.former. While crossing the bridge and when passing above the county road the whistle of one of the engines of defendant going east, and drawing a passenger train, was sounded twice for the purpose of informing, the signal-men at the tower on the east side of the bridge that the signal displayed at the tower had been seen by the engineer. According .to the testimony of the plaintiff it was the sounding of the whistle which caused the accident and produced the injury, damages for which he seeks in this suit to recover.

At the close of the plaintiff’s testimony the defendant asked the Court to take the case from the jury, but this request was refused, the defendant excepted, and offered testimony in its defense. By proceeding with the case after its first prayer was refused, the defendant must be held to have waived its exception to that action of the Court. But the same questions, namely, whether, first, there is any legally sufficient evidence in the case to prove negligence on the part, of the defendant, and secondly, if there was such negligence on the part of the defendant, whether the-plaintiff was guilty of such contributory negligence directly contributing to the injury as will prevent a recovery, are again presented by the defendant’s tenth and eleventh prayers which were refused. The ninth prayer of the.defendant raises the question as to whether, under- the circumstances of this case,-as set forth in that .prayer, the plaintiff was not bound “ to stop, look and listen.” . The defendants excepted to the refusal of its ninth, tenth and eleventh prayers, and to ,the granting of the plaintiff’s two prayers. The verdict and judgment being, in favor of the plaintiff, the defendant has appealed.

The only questions, therefore', before us on this record are the .two principal questions which are generally involved in actions to recover damages for injury caused by the negligent act of another, that is, first,, was the injury caused entirely by the negligence of the defendant, or, secondly, did the plaintiff by his own negligence, directly contribute to his own misfortune ?

We will consider these .two questions in the light of the testimony disclosed by the record, and the conclusion at which we arrive will enable us briefly to dispose of the legal proposition involved in the prayers of the plaintiff which were granted, and the three prayers of the defendant which were refused.

- By the testimony of the plaintiff it appears that the negligence of the defendant, which he relies on, are first, the failure to blow the whistle before reaching the crossing, and the blowing of the whistle while the train was in the act of passing over the bridge immediately above the crossing. The only testimony we have that there was a failure to give the signal of the approach of the train is the bare statement of the plaintiff, that although he listened, he did not hear it. In view of the testimony offered by the defendant showing, as we think, beyond doubt, that the approach signal was in fact given, this negative testimony of. the plaintiff is, to say the least, very unsatisfactory. But assuming, without so deciding, that such testimony as the plaintiff gave would, in a different case, be legally sufficient evidence' to be submitted to the jury, we think it is clear it has no application whatever to the case at bar, because it is conceded by his counsel and the plaintiff’s evidence is clear to the effect, that the sole cause of the injury was not the failure to give the signal of the approach of the train, but the blowing of the two blasts over the heads of the horses. “The sole cause of the accident,” argues counsel, “was the careless act of the engineer of the train giving two sharp blasts of the whistle directly over the highway. But for that act there would have been no accident.” The plaintiff testified that “ the horse was not paying any attention to the cars or the noise until he blew the whistle. As soon as he blew the whistle the horse jumped.” And again he says it took the second whistle to make the horse run, and that he did not think he would have run.awaybut for the second whistle.

We will therefore pass to the consideration of the second act of negligence relied on by the plaintiff. His testimony is clear and affirmative, as we have seen, to the fact that the blowing of the two blasts over the highway was the cause of the accident. This is not the case of a passenger seeking to recover damages for negligence of the railroad company, and therefore no presumption of negligence arises from the simple happening of the accident — and the onus is upon the plaintiff to show that the defendant did not use ordinary care. Pumphrey's case, 72 Md. 82; Bahr's case, 28 Md. 647. It is also incumbent on the plaintiff to prove circumstances from which it may fairly be inferred that there is a reasonable probability that the accident resulted from want of some precaution which the defendant might and ought to have resorted to, and to show with reasonable certainty what particular precautions should have been taken to avoid the injury. Stebbing’s case, 62 Md. 504. But when the plaintiff offered proof of the blowing of the two blasts over the highway on which he was traveling, and when at the same time it appears from the evidence offered by the defendant, that while the sounding of the whistle on the bridge was a necessary and proper regulation, yet that it could have been and usually was sounded after or before passing the highway, there was sufficient evidence to go to the jury that the act complained of as an act of negligence was such; Hogeland’s case, 66 Md. 162; Rupard v. Railroad, 88 Kentucky, 280; Barnett’s case, 59 Pa. St. 259; and that it could have been avoided by the use of ordinary care on the part of the defendant. It is true, as shown by the evidence, that it is impossible for the engineer at this point at the same time to watch for the signal at the tower and look out for travelers on the highway, but for this very reason the defendant should mark the point on the bridge where it crosses the highway, and instruct its agents not to blow the whistle at that point. And thus that which, in this case, is alleged to be the sole cause of injury, will be avoided.

This brings us to the controlling question in the case: Was the plaintiff guilty of such contributory negligence as will prevent recovery? We are clearly of opinion that he was. In the first place it may be remarked that the crossing in question is not the ordinary grade crossing, but that it is one of unusual elevation overhead, the bridge over which the defendant’s trains pass being from 70 to 90 feet high. At the point in question the train was elevated about 80 feet above the road, and the plaintiff testified that from any point along the road on which he was travelling, until within a few hundred yards of the bridge, the trains going, as this train was, from Baltimore to Philadelphia could be seen nearly all the way across. But surely it would need no evidence to establish this important fact. It must be, from the great elevation of the bridge that it and the trains passing over it are visible for a great distance. It also appears from the evidence that the noise produced by the movement of trains over the bridge was much greater than that of a similar train on the ground. All the witnesses testify that when going north, on the road towards the bridge, a considerable portion of the latter was plainly visible, except when the view was obscured by two buildings — a factory and an ice-house. Now, when it is remembered that the whole time occupied by a passenger train in crossing the bridge is three minutes, it would seem to be clear that it was the duty, of the plaintiff either to look from a point where he could see, or to stop when in a place of safety and listen. Hogeland's case, 66 Md. 161; Neubeur's case, 62 Md. 399; Price's case, 87 Md. 188. But he did neither in such a manner as to entitle him to recover. He says he looked, but did not see the train. But this is not sufficient. It will not do to say that he looked and did not see, and listened and did not hear, when the facts of the case show that if he had looked or listened with the requisite care and caution he must have seen or heard it. For a distance of about 500 feet, that is, from the factory to the north end of the ice-house, the train, by his own testimony, could have been seen or heard by the exercise of ordinary care and caution nearly all the way across the bridge — a mile — and if the plaintiff failed to do what the law requires of him, he must suffer the consequences of his own rashness. Price's case, 87 Md. 183. In addition to this failure to see or hear the train approaching, he left the usual and proper position which he should have occupied while driving his team, and walked until the train was over his head, when he took hold of one of the horses, leaving the other without control. If he had remained upon the seat of the wagon he could have not only used the lines for the purpose of preventing the horses from running away, but the brake, if in working order, would also have been within his reach. The plaintiff testified bhat he could not tell whether injury would have happened if he had remained in the wagon, but that he could have had better control there with the lines in his hands. But it was argued in his behalf that “ he was not bound to anticipate and guard against a possible negligent act of the defendants’ servants,” and that “ he had no reason to expect they would sound the whistle directly over the public road.” As we have said, this was undoubtedly an act of negligence on the part of the defendant, but the plaintiff was not thereby justified in driving into a place of danger, when, by the proper and reasonable use of his eyes or ears, he could have remained in a place of safety. We think the usual rule applicable to grade crossings should be applied to crossings whether under or over railroads. No greater degree of care should be required of one party than the other, (Owing' s case, 65 Md. 502), and where the crossing is dangerous the duty of care and caution is mutual and reciprocal. Hogeland’s case, supra; Rupard v. R. R. Co., 88 Ky. 280; Barnetts case, 59 Pa. St. 268. And so in regard to the rule as to stopping to listen. It should be applied to all crossings where the view is obstructed, or when, for any other reason, it is evident that the traveller can hear better and avoid danger by stopping to listen in a place of safety. In Rupard’s case, supra, the public road crossed the railroad by a bridge about 20 feet high. While the plaintiff was passing over the bridge her horse became frightened at the noise made by the train going under the bridge, and she was injured. It was held it was negligence of the defendant to fail to give notice of the approach of the train, but that the case was properly taken from the jury because of contributory negligence of the plaintiff. “ She was familiar with the crossing and its surroundings. The track in the direction that the train was coming was clear of obstruction several hundred yards, and she could have seen the approaching train that distance had she looked.” In the case at bar the plaintiff testifies that he did look and listen, but neither saw nor heard it. As we have said, he was bound to see or hear it under the circumstances in evidence. See also Barnett's case, supra, in which the necessity of giving notice of approach of train where public road crosses above the railroad.

(Decided June 14th, 1900.)

Reversed without a new trial.

McSherry, C. J.,

delivered the following separate opim ion.

I agree that the judgment in this case ought to be reversed without awarding a new trial, because the plaintiff was guilty of negligence which directly contributed to producing the injury he sustained ; but I do not agree that the defendant is chargeable with any negligence at all.

The only evidence adduced and relied on to convict the defendant of negligence is that which shows that a whistle was blown directly on an over-head crossing of a public highway. The railroad is some eighty feet above the highway. Now, this blowing of the whistle was, if negligence at all, either negligence in se, or it was negligence because of some other circumstances which made it so. If the blowing of the whistle over the crossing was negligence in se, then the servants of the company were guilty of negligence when they blew it; but if the blowing of the whistle at that point was not negligence in se then something more than the mere blowing of it was necessary to make out an act of negligence. This was not a grade crossing, and the case differs in that respect from Hogeland's case, 66 Md. 149. Neither the first nor the second signals given by the whistle were given as a warning of the approach of a train to the crossing. The first blast, sounded some distance away from the crossing, was intended to attract the attention of the signal-man in the signal-tower. When the signal-man was thus apprised of the approach of the train, it became his duty, if the block ahead of the approaching train or the track on the bridge was clear, to give the proper signal advising the engine-man that it was safe to advance or if the contrary conditions existed warning him to stop; and it then became the duty of the engine-man to sound two sharp whistles so as to apprise the signal-man that the tower-signal had been seen by the engine-man. This rule is an absolutely necessary one in the operation of a railroad, especially at a place like the one in question. On the bridge over the Susquehanna River there is but a single track, whilst the road on each side is a double-track road. Trains going in both directions — that is from Baltimore to Philadelphia, and from Philadelphia to Baltimore — must pass over this single track on the bridge. It would be reckless madness if no rule existed requiring the approach of a train, in either direction, to take this single track, to be signalled to the tower-man who controls the switches, and requiring the engine-man to notify the tower-man that the signal of the latter had been seen by the former. In the absence of a rule providing that the engine-man must call for a signal, that the tower-man-must display a signal, and then that the engine-man must give notice that he had seen the signal, it is perfectly apparent that collisions on this single track, or beyond it on the double tracks, and a consequent appalling loss of life would be constantly imminent and would frequently occur. The rule, therefore, is not only reasonable but necessary. Being necessary it was one which the company had the right to adopt and the adoption of it was therefore lawful. A signal given in obedience to such a rule cannot be negligence in se, for a rightful act, unless wrongfully done, cannot be a negligent act. If, then, the right to sound the whistle existed, the mere sounding of it was not wrongful, but the wrongful sounding of it would be the wrongful doing of an act which the company had the right to do rightfully; and this wrongful doing of a rightful act would be negligence. Hence, it is obvious that it is not the bare act itself, but a condition back of the act which constitutes the negligence. The act, therefore, is not negligence in se. If the conditions exist which make it negligence then it would be a negligent act; if they do not exist then it would not be negligence.

Now, the plaintiff must both allege and prove that the defendant had been guilty of negligence. He must, therefore, prove the existence of the conditions which make the act relied on as negligence a negligent act, or he fails to prove negligence. And he fails to prove negligence because he simply proves, if he proves no more than the act itself, an act which may or may not be negligence, as undisclosed circumstances may make it. But it may be retorted that the blowing of the whistle over the crossing was negligence because ordinarily it was blown somewhere else. That if it had been blown before reaching the crossing or after passing it there would have been no accident. Thus the place of •the blowing is relied on as the circumstance to show that the act of blowing was negligence. But this would beg the question. The necessity for the blowing and not the place where blown must determine, in a case like this, whether the blowing was rightful or wrongful. If there was no necessity for blowing over the crossing and an injury was likely to result from a blowing at that point, then blowing there was negligence. If there was a necessity for blowing there, then the fact of blowing was not negligence even though an injury did happen. To prove negligence, then, it was incumbent on the plaintiff to show not only the blowing over the crossing, but that there was no necessity for the blowing at that point. This must be so unless • the burden is on the defendant to show that there was no negligence, instead of the burden being on the plaintiff to show that there was negligence. The difficulty of proving negligence by proving that there was no necessity for the doing of the act alleged to be negligent is no reason for exempting the plaintiff from supplying the proof or for casting on the defendant the duty to show that there was no negligence. Now, there was not a particle of evidence introduced to show that there was no necessity for the whistle being sounded just where it was sounded, except the fact that ordinarily it had been sounded before or after crossing the highway. That such had been usually the course may be conceded, and yet the question as to whether it was necessary that the signal should be sounded where it was sounded remains unanswered. The fact that usually the whistle had been blown before or after passing the crossing by no means proves that it never had been blown there before, or that upon this occasion it was not necessary to blow it at that point. In the nature of things no precise, definite place for sounding the whistle to indicate that the tower-signal has been seen, can possibly be prescribed, because the place where the engine may happen to be when the tower-signal is exposed will necessarily vary. The rapidity of the train and the promptness with which the signal is displayed must be considered; and the promptness with which the signal is displayed may often depend upon whether the next succeeding block beyond the tower is clear of trains. A fixed whistling-post might and probably would be frequently passed before the towrer-signal could be given; or it might not be reached when the signal was displayed. There are so many contingencies which arise in the practical operation of a railroad that it seems to me there can be only one effective rule on this subject, and that is the one in force, viz., that upon the display of the tower-signal the answer shall be given by the engine-man. The whole surroundings create a condition which cannot have relation to points of space or matters of distance, but can only relate to successions of interdependent acts.

It is thus quite evident that a blowing over the highway may not be negligence even if usually there was no blowing there. But if you say it was negligence to blow there unless the defendant shows that there was a necessity for blowing there, I answer that you then invert the rule of law as to the burden of proof and you cast upon the defendant the duty to show that there was no negligence, though the settled doctrine in these cases is that the plaintiff must show that there was negligence; and he obviously does not show it by proving a fact which may or may not be negligence, and which, therefore, until explained by him, is absolutely neutral.. If an act may or may not be negligent, as surrounding circumstances make it the one or the other, it is clearly incumbent on the person relying on it as negligence, to show the facts which make it what it is alleged to be and what it must be to support a recovery. This was not done, for nothing was proved on this branch of the case but the fact that the whistle was blown over the crossing and the further fact that usually the signal was given elsewhere; and so it seems to me the plaintiff failed to prove that the defendant had been guilty of negligence in sounding the whistle over the crossing.

(Filed June 22nd, 1900.)  