Opinion of the Court.

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 so 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

Opinion of the Court.

The proof

see him past the edge of the car? 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

Opinion of the Court.

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., concur. NEWMAN, J., dissents.

Dissenting Opinion.

WANAMAKER, 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 conpany, 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.

Dissenting Opinion.

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 more essential elements of the plaintiff's case. But it will be