by one of the company's passenger trains. The petition charged the company with negligence in propelling its train over the crossing at a high rate of speed without ringing the bell or giving other timely warning. The answer denied the statements of the petition, and alleged that the injury was due to plaintiff's negligence in not exercising proper care and caution for his own protection. Plaintiff recovered in the Circuit Court. The controlling question is whether the jury should have been directed to return a verdict for defendant because of contributory negligence on the part of plaintiff. Defendant's double-track railroad crosses Main street in Scranton, a small town in Iowa, at right angles, the railroad extending east and west and the street north and south. The north track is used by east-bound trains and the south track by those west-bound. The space occupied by the tracks in the vicinity of the crossing is about 50 feet in width. The crossing is at grade, and the tracks extend westward in a straight line over level ground for a mile and a half or more. West of the street and north of the tracks, but not less than eight feet from the north rail, are a water tank, pumphouse, and toolhouse-all small structures. The distances from the center of the street to these structures are about: water tank, 90 feet; pumphouse, 200 feet; and toolhouse, 375 feet. The pumphouse is used to shelter a stationary engine employed in pumping water into the water tank. The smokestack to this engine is approximately 12 inches in diameter and 25 feet in height, and is 18 feet from the north rail. North of the tracks and west of the street about 800 feet are stockyards. The accident occurred about 11 o'clock in the forenoon, January 24, 1901. A west-bound freight train upon the south track was moving slowly toward the crossing. An eastbound passenger train, called the "Chicago Special," struck plaintiff as he stepped upon the north track on his way over the crossing to a grain elevator south of the tracks. This passenger train usually traveled at a high rate of speed, and did not stop at Scranton. On this occasion it was composed of one of the largest passenger engines, weighing 90 tons, and eight cars, was traveling about 50 miles an hour, and was an hour late. Plaintiff was a stone mason, 40 years of age, in good health, and had good hearing and eyesight. He had worked much in the neighborhood of the railroad, frequently crossed the tracks at the crossing, knew of the double track, the surroundings at the crossing, and the speed of the Chicago Special. He also knew that a train might pass at any time, and that some of the trains, including this one, did not stop at Scranton. It will be assumed that the evidence showed negligence on the part of defendant in that the bell on the passenger engine was not rung as required by the statute (section 2072, Code Iowa 1897), and that the flagman at the crossing, instead of being where plaintiff was accustomed to see him, was at a place where he could not be seen by plaintiff, and failed to give warning of the approach of the passenger train. In approaching the crossing from the north, the view of the railroad to the west was somewhat obstructed by the structures and the stockyards before named, and, while there was a conflict in the evidence upon the point, it will be assumed that pllaintiff was not negligent in failing to see the approaching passenger train before he reached

the immediate vicinity of the tracks. The claim that plaintiff's negligence proximately contributed to the injury rests largely upon the evidence bearing upon the extent to which the view to the west along the tracks was obstructed by smoke and steam from the pumphouse. Plaintiff testified that no whistle was sounded; that he approached the crossing to a point near the center of the street, and within about six feet north of the north rail; that the west-bound freight train on the south main track was then nearing the crossing, "was going very slow," and "did not make any noise to amount to anything"; that from this point he looked carefully along the tracks in both directions, and listened attentively, but could not see or hear any train other than the freight train; that the view along the tracks to the west was entirely obstructed by heavy smoke and steam from the pumphouse, which was being carried upon and across the tracks by a strong wind from the northwest, and that this smoke and steam extended "clear to the crossing." In view of the other evidence, it is important to note plaintiff's specific description of the precaution taken by him for his own safety. He testified:

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"I walked down to the track, where I went to cut across. I came to a halt, and stopped and listened, and I looked west and see this [pumphouse] smoke, saw this [freight] train coming up over the east side on the south track slowly, and looked for this other [west-bound] passenger, which was about due, east of it; then stopped again, with my left foot over the rail of the north track; then heard the chickering of the rail of the north track; then I looked up. When I heard the chickering I looked up, and throwed up my right hand and jumped. When I looked up I saw the [east-bound passenger] train. The engine seemed to swell right up-to come right up. Then I made a desperate leap to get out of the way, and said 'Oh!' as I jumped. I looked west first, then I looked east, and I saw this freight. The head of the freight engine was near about the street line on the east side of the street. A team had just crossed the street ahead of me, across the track. The smoke that came from this pumphouse did not obstruct the view of the crossing at all as I looked south. * [Before I reached the crossing] this freight train from the east was a little east of the street. I had seen it. I see it moving up that way. I hurried in order to cross ahead of it. I hurried down to the track. As I walked down towards the track, I walked pretty fast so as to get ahead of that [freight] engine. I intended to cross ahead of the [freight] engine, if the coast was clear. * * Q. So that you looked west, to see if there was a train coming, when you first reached the track? How close were you then? A. Oh, about six feet, I should judge. The freight engine had not yet crossed. I came down to a halt then. Just stopped and looked up the track, and then looked east. Where I stopped still was near about the center of the crossing. I was not between the rails. Was outside of the north rail; near about six feet from the north rail. When I thought there was no danger, I moved to get across the track. When I finally started to go across the track, I did not stop any more, but it was the engine of the passenger train that stopped me. At the time, after I listened, I made the start across the track, and stepped my right foot and then the left, and I was over the north rail when I heard the jar or chinkling of the rails, and I looked up and saw the train coming right at me. I placed my eyes on this freight train, and advanced across the track, and heard the chinkling of the rails, and looked up and saw this train, and jumped to the right off the track. * I did not see the other train until I heard the chinkling of the rails and looked up as I was moving across the street and jumped to the right. When I looked towards the west for the train, I saw a man in the middle of the track, just coming in that smoke-just coming that way. I could not tell who that was, his back was to me. He was not as far away as the toolhouse. He was along by the tank, in there. This man had been in the middle of the track

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and went up that way. He was getting right just into the edge of the smoke. I do not know where he went to then. He had disappeared when I turned my head to look. That cloud of smoke did not hide him. He was going right into the smoke when I saw him. I could not see into the smoke a little ways. I saw the man right in the edge, the smoke whirling around him. ** I turned, and looked east for the other trains, and looked for this [freight] train across the track. Q. Then did you look back again to the west? A. No, sir; not until I heard the chickering of the rails. Q. When you passed the water tank, you only looked west once, did you? A. Once. When I looked at the train-saw the train. Q. After passing the water tank, you only looked west once until the time you were struck-just the instant before you were struck? A. No, I looked, I think, twice, because I turned my head and looked up the track, and then stepped on this plank and looked up there again, and saw this man advance up the track in the middle, and then saw this [freight] engine, and looked eastward, and ventured across the track. Q. And just

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before taking these two steps that brought you to the track; that is, the last time you looked to the west? A. No, sir; I looked again just before I advanced to step on the track; that is when I saw the man. At that time I could not see any engine. I don't know whether the man got hit by the engine. I was not looking that way then. Q. After you saw that man disappear in the cloud of smoke, you only took just one step or so before you got hit, did you? A. The second step. Q. The second step after you looked west and saw the man, you got hit? A. Stepped with the right foot first, and then with the left foot over the north rail. I got the left foot clear over the rail. I saw the engine, and made a desperate effort to get out of the way. I don't know how close the engine was. I thought it was right after me; seemed to swell right up and strike me with terror. Q. You did not see it until the instant it struck you? A. Just as I gathered myself to jump, it came right at me, and I just said 'Oh!' as I jumped. * * I did not hear anything but the chickering of the rail, was all the signal I had of that train; that was too late to do me any good. Q. Now, when you stopped and stood there, and looked west to see if you could see the train, you say the cloud of smoke prevented you from seeing down the track, so that the look did not help you any. You could not determine whether there was a train or not when you looked, could you? A. No, sir. The time I stood there listening about two steps north of the track was pretty short. It was a very short time. Q. You did not wait there long enough to do any more than just look and turn back again and look? A. And look at the crossing and this other [freight] train to see if the coast was clear. * * I looked west first. Q. Then you saw the smoke, and then you looked east and walked across? A. No, I looked east and to this other [freight] train. And I started to go across. [On my way to the crossing] I noticed some men out west there. Did not know who they were. Noticed them up there about the toolhouse. Just noticed a handcar there. Noticed men up there. When I got down within a couple of steps, and looked west, I did not see anything of the section men. All I saw was one man advancing up in the center of the track. He was up a little above the tank. Q. And nothing to obstruct your view down that track for a whole mile, except this smoke you speak of? A. The smoke and the man in the center of the track. ** [On my way down to the crossing] I met Mr. Holden, and said ‘Good morning.' I walked rather fast from there down to the six feet from the tracks. Not just expressly for the purpose of crossing ahead of the freight train. I was in a hurry for my business that I had to perform. I did not think I was a little late in getting there. I thought I had plenty of time to do it, but I didn't usually go lounging along; am a quick active man in that way. Q. But so far as the [freight] train alone was concerned, you would have had time to go through ahead of the freight train? A. I would not have had plenty of time."

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Seven witnesses for plaintiff gave testimony bearing upon some of the matters to which plaintiff testified. Shaffer, who was on Main street at a considerable distance north of the crossing, says plaintiff stopped a few feet north of the north rail, and looked both east and west. Taft, Robertson, Shaffer, and Clews say that smoke in con

siderable quantity was coming from the pumphouse, but none of them says or indicates that it obstructed, or was sufficient to obstruct, the view along the railroad. Williams, who came over the crossing from the south about two minutes before the accident, says he looked to the west along the tracks for a quarter of a mile, and "I had no trouble making up my mind there was no train anywhere near me towards the west. I could see all right. There was nothing to prevent me from seeing." Clews, who was in the toolhouse, heard the "rumbling of the train and the clatter of the rails" about five seconds before the train passed the toolhouse, and "heard two short whistles after the engine and part of the train had passed that point." The other six heard two sharp blasts of the whistle given at the water tank. Taft also heard the rumbling of the train before the two blasts of the whistle. None of the seven heard the train or its whistle prior to the times stated. This is the whole of the evidence produced by plaintiff upon the subject under consideration.

Of the witnesses for the defendant, five, who were in the immediate vicinity of the crossing, say they looked along the tracks to the west, past the water tank and pumphouse, and readily and plainly saw the approaching train; and four, who were at or west of the pumphouse, say they looked along the tracks to the east, and readily and plainly saw the crossing and objects about it. All were in positions where they necessarily looked through the identical space in which plaintiff locates the smoke, and all refer to the time when the train was approaching and was within a mile of the station. Olive, a druggist, testified that he started west along the north track on his way home; that when near the water tank he saw the approaching train about a mile away, and retraced his steps to the sidewalk on the west side of the street and north of the tracks, where he remained until after the train passed; that he followed the train with his eyes, and when it was whistling saw the steam from the whistle; that after passing the stockyards the whistle was sounded sharply and loudly more than once; that the smoke did not interfere with the view of the tracks to the west, or prevent seeing the train; and that he was the second person to reach plaintiff after the accident. McClure, assistant cashier of a bank at Scranton at the time of the trial, but station agent for defendant company at the time of the accident, says he looked to the west out of the bay window in the south side of the depot, which was immediately north of the tracks and east of the street, and distinctly saw the train about a half mile from the station. Sparks, the engineer of the passenger train, testified that he saw objects about the crossing for three-quarters of a mile as he approached the station; that he saw the plaintiff, and, as the latter did not appear to notice the approach of the train, a succession of short blasts of the whistle was given, commencing before the train reached the pumphouse. Thompson, the head brakeman of the freight train, testified that he was on the depot platform about 200 feet east of the place of the accident, and readily saw the passenger train approach from near the stockyards; that he heard the danger signals and saw plaintiff; that plaintiff did not appear to notice the coming train, and he (the witness) hallooed with all his might to attract plaintiff's atten

tion, and was the first to reach plaintiff after the accident. Griffe, a farmer, who was in a poultry store which faces west on Main street, says he heard a shrill whistle, and on stepping out of the door heard two other blasts of the whistle and the rumbling of a train, and then saw the passenger train pass the water tank. Six of defendant's witnesses, including the engineer and fireman of the passenger train, say a station whistle and a crossing whistle were distinctly sounded before the stockyards were passed. Ten of them say there was whistling before the water tank was reached, and eleven say there was whistling at the water tank. All but one of the eleven saw the train before it reached the crossing, and those familiar with the operation of trains describe the later blasts of the whistle as "danger signals." Counsel for defendant call attention to the rule which prefers the testimony of a witness who testifies to an affirmative to that of a witness who testifies to a negative (Stitt v. Huidekoper, 17 Wall. 384, 394, 21 L. Ed. 644; Rhodes v. United States, 25 C. C. A. 186, 79 Fed. 740; Allen v. Bond [Ind.] 14 N. E. 492, 496), and urge that it be applied to the testimony respecting the sounding of the whistle. The rule is not absolute. Northern Pacific Railroad Co. v. Freeman, 174 U. S. 379, 381, 19 Sup. Ct. 763, 43 L. Ed. 1014. It rests upon common experience, and is applied as a proper means of determining the relative value or weight of conflicting testimony, and not as a basis for the entire rejection of negative testimony. But where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witnesses who were in a situation favorable for observation, and who testify affirmatively and positively to the occurrence. There is then no conflict. Horn v. B. & O. Ry. Co., 4 C. C. A. 346, 351, 54 Fed. 301; Hubbard v. Boston & A. R. Co., 159 Mass. 320, 34 N. E. 459; Culhane v. N. Y. Cent., etc., Co., 60 N. Y. 133, 137. We do not deem it necessary to consider the opportunity for observation possessed by each of plaintiff's witnesses, or the effect to be given to their testimony that they did. not hear the earlier whistling described by defendant's witnesses. It is sufficient to say that of the 19 witnesses who testified about the blowing of the whistle, all but plaintiff, irrespective of the party by whom they were called, declared that at least two danger signals were sounded at the water tank by the whistle of the passenger engine. Considering the speed of the train, that there were two of the signals, necessarily sounded in succession, and that the occasion for giving them must have been conveyed to the mind of the engineer before either of them was given, this evidence is nothing short of a perfect demonstration that the engineer, before passing the space which plaintiff says was filled with smoke, looked directly through it, and saw plaintiff about to cross the tracks. It is equally a demonstration that plaintiff could have looked through the same space and have seen the approaching train. There is also the testimony of nine witnesses, as before stated, who say that, at the very time when plaintiff claims to have looked, they looked along the tracks through the same space, and readily and plainly saw the objects beyond it. And Wil