Page:Federal Reporter, 1st Series, Volume 9.djvu/884

 TUCKEB V. DUNCAN. 869 �trains, nor any other waraings or signais given other than the ring- ing of the bell or blowingof the whistle. These are all of the undis- puted facts that need be stated. There are others, and upon which the questions submitted must greatly depend, about which there is more or less conflict between the witnesses of petitioner and defendant. �The conductor of the train, the engineer who was operating the engine, the brakeman who was then employed in changing the switch or throw-rail, the fireman then engaged on the locomotive and whose business it was to ring the bell, also another witness, all testify that at the time the collision took place, and before, while the locomotive was in motion, the bell was ringing. It is also in proof that soon after the accident the petitioner stated that the bell was ringing. The petitioner has introduced the testimony of a number of witnesses, stat- ing that they were near enough to have heard the bell if it had been ringing ; some speak in more positive terms that it was not rung ; and others, that if it was that they did not hear it. Other witnesses state that it was the general practice to ring the bell when the engine was in motion, but that It was sometimes omitted ; some witnesses stafcing that the omission was frequent, and others that it was not. It is also in proof that accidents have occurred at this crossing before, or wel-e barely escaped. It was the duty of the conductor and of the engineer to see that the bell was rung, and it is to be presumed that the brake- man would also observe this duty; it was also the duty of the fire- man to ring it. Ail these swear positively that it was rung. �The testimony on the other side is, with one or two exceptions, of a negative character, and those stating most positively do not state reasons for remembering that they were listening, and that the bell was not ringing ; and then the declaration of the petitioner himself to his physician when attending to his wound immediately after the accident, explaining how it occurred— that the bell did ring — in my judgment gives a decided preponderance in favor of the proposition that the bell was rung. I cannot assent to the position that the em- ployes of a raiiroad are less worthy of belief than other agents. AU agents and employes are presumed to be friendly to their employer, and on that account are usually subjected to a rigid cross-examination ; but when this is done, their evidence must be weighed as other tes- timony, and its value estimated in coneetion with all the acts proven. �It is contended by petitioner's counsel that no weight should be given to petitioner's declaration made in the presence of the engineer, as testified to by him, as to the ringing of the bell, because of the want of credibility of the witness, the unreasonableness of his statement, ��� �