try was flat and open, the track substantially straight, the day clear, the view unobstructed, the time about 1:40 p. m.; that he looked along the track in advance of the engine before he approached the whistling post, and practically looked in the direction of the crossing along the track from that time on until he struck the child, and that the performance of no other duties took his attention away from his looking in advance of the engine; that when he was about two hundred yards west of the crossing, or about one hundred and twentyfive yards west of the place where the child was, he discovered an object lying between the rails of the track, which he thought "might be old clothes or weeds, most anything;" that from the time he first saw the object until he struck the child he looked at it and the crossing; that he saw the object before he saw the crossing; that a person on an engine at a speed of thirty-five or forty miles an hour could not see an object on a track as well as one standing still; that he did not recognize the object as a child until he was within sixty feet of it, and when "it started to get up and raised its head and looked around towards the engine;" that he then applied the air, and did all that was possible to stop the train; that from the time when he first discovered the object on the track he made no effort to slacken the speed or check the running of the train until within sixty feet of it; that when he attempted to stop the train he was then unable to do so until it had run a distance of about five hundred and forty feet. The plaintiff also gave other evidence showing that on a subsequent day the clothes which the child wore on the day of the accident were folded up and a string tied around the middle of them and placed on the track between the rails at the place of the accident, and that one standing on the track eight hundred feet to the west could see that the bundle was clothes, and that it was lying between the rails. Evidence was also given of further experiments which were made by placing a child smaller than plaintiff's child on the track between the rails at the place of the accident, the child being in "a sitting position and leaning over the rail with its face towards the north," and that one standing on the track one thousand and three hundred

feet to the west could see the child, and at a distance of eight hundred feet "could see the child's face plainly, and see and know that it was on the track between the rails," and five hundred feet away "could recognize whose child it was." Testimony was also given in behalf of plaintiff by an expert witness that an engineer in his cab when the train was running from thirty-five to forty miles an hour on an ordinary smooth track could better see an object on the track than a person standing on the track at the same distance; and that the train, under all the circumstances shown in the case, could have been stopped within a distance of one hundred yards. Upon this evidence the holding of the majority of the court is to the effect that, by the engineer's looking along the track in manner as testified to by him, but one finding is justified by the jury, and that is that he did not discover the child until the train was within sixty feet of it, and then, of course, it was too late to avoid the injury. Such a conclusion seems to be reached mainly upon the testimony of the engineer, wherein he testified that, notwithstanding his looking along the track in advance of the engine and in the direction of where the child was lying, he could not and did not recognize it as a child until he was within sixty feet of it. The question is not now, was the engineer in the first instance required to anticipate the probable presence of persons upon the track at such place and to observe a reasonable lookout for them, and for that reason to be held chargeable with a dereliction of duty in failing to observe a lookout, and guilty of negligence in failing to see and observe something which could have been seen and discovered had he looked. There is evidence to justify a finding that from the time the train left the whistling post until it reached the place where the child was struck the engineer was looking along the track and in the direction of the crossing and of where the child was lying, and that during such time his attention was not occupied by anything else. In fact, the evidence showing such matter is substantially without conflict. The question, then, is not whether the engineer should be held chargeable with negligence in failing to see and to observe something which could have been

seen and observed by him had he looked, but what could be seen and observed by him in looking along the track in manner as testified to by him in the direction of the crossing and of where the child lay? Suppose a horse had been lying on the track at the place in question under similar circumstances as disclosed by the evidence, and the engineer had testified, as here, that he was looking in advance of the engine, and in the direction of the object, and had also testified that he could not see the object until he got within two hundred yards of it, and that he then supposed it to be something which could not be injured and which would not endanger the train, and that he did not discover that it was a horse until he got within ninety feet of it, when the horse began to struggle, is that the end of the inquiry? Suppose an average-sized man had been lying on the track, and similar testimony had been given by the engineer with respect to his looking along the track in advance of the engine, and that he did not discover the object until he got within one hundred and twenty-five yards of it, and that he then supposed it was some inanimate thing, and did not discover that it was a human being until he was within sixty feet of it, when the man raised his head and looked around, is that, again, the end of the inquiry? It may be said, as intimated in the opinion, that such objects on the track would be so prominent that in looking along the track the inference of seeing them at a greater distance would be unavoidable, or that the testimony given in such cases that they were not seen at a greater distance would be improbable. or false. But shall it also be said that when testimony is given with respect to a smaller object, a two year old child, that by looking along the track it was not seen until within one hundred and twenty-five yards of it, and that it was not discerned to be a child until within sixty feet of it, such testimony must be taken as conclusive of the matter because it may seem quite probable, notwithstanding there is evidence to show that such an object could be seen at a distance of one thousand and three hundred feet, about one-half the distance between the whistling post and the crossing, that at the distance of eight hundred feet the face of such a child could

plainly be seen and recognized, and that at such a distance even the bare clothes which the child wore on the day of the accident, and which were folded up and placed between the rails, could be seen and recognized as clothes? In this respect I think the majority of the court have dealt not with a question of law, but with a pure question of fact, and have in effect themselves undertaken to determine within what distance an engineer situated as was the defendant's engineer, by his looking along the track in manner as disclosed by the evidence, could see an object the size of a two year old child lying between the rails, and within what distance it could be discerned that it was a child, or else have assumed that the testimony which the engineer gave on the subject was conclusive. It may be, as intimated in the opinion, that the evidence of the experiments may not be entitled to as much weight as the testimony of the engineer, but that was a matter more properly within the province of the jury. Further more, when the engineer testified that he discovered the child one hundred and twenty-five yards away, such distance was only estimated by him. When asked how far west of the railroad crossing he was when he first saw the object, he said: "Oh, I guess I was about two hundred yards; something like that." When asked how far he could see the object, he said: "I could see it for about one hundred and twenty-five yards. Now this is not positive. I did not measure it. It is to the best of my judgment one hundred and twenty-five yards." By other portions of his testimony it appears he testified: "To be absolutely safe that you know the object is between the rails, I don't think you could see it over two hundred yards." On cross-examination he testified that he did not mean that it was two hundred yards away that he saw the object, and could see that it was on the track, but that the distance at which he could see that the object was on the track was not over one hundred and twenty-five yards. Witnesses, when testifying from recollection concerning distance and time, are apt to either overestimate or underestimate the real fact; not because they intend to do so, but because of the difficulty in fixing them with any degree of exactness. In many instances witnesses can

only approximate them. That was all this witness did. When such is the case the inference or conclusion to be drawn from the fact or facts so testified to can, likewise, not be definite nor exact. The inference or conclusion must, of necessity, be as flexible and indefinite as is the testimony of the facts itself from which the inference or conclusion is inferred or drawn. But apart from these considerations, from other evidence in the case that the engineer was looking in advance of the engine, and in the direction of where the child was lying, and that such an object could plainly be seen at a much greater distance, the jury might find that the engineer was mistaken in his estimate of the distance at which he first say the object, and that he saw it at a much greater distance.

An engineer discovering an object on the track may not assume, as matter of law, that it is inanimate and of no consequence, and regulate his conduct accordingly. Whether he may do so, I think, ordinarily depends upon the character and appearance of the object and the facts and circumstances of the case. Upon this question, I think, the authorities are generally of one accord. In this connection it is said that the case of Hyde v. U. P. Ry. Co., 7 Utah 356, 26 Pac. 979, is not applicable. I think the purport of the decision and the points before the court for review in that case have been misconceived. In the opinion of the majority of the court a quotation is set forth of a portion of the charge relating, not to the defendant's duty nor its negligence, but to the negligence of the parents and the child, which the reporter inserted in the report preceding the opinion. The charge is nowhere referred to by the court, either in the state of the case or in its opinion. The following statement made by the court in its opinion clearly shows that the charge of the court with respect to the negligence of the defendant or its duties, or even with respect to the negligence of the parents or the child, was not before the court for review:

"The questions of the negligence of the parents and of the railroad company were submitted to the jury under proper instructions by the court, to which no objection is taken, and we see no reason for disturbing their verdict on the ground that it is not supported by the evidence."