The following opinion was filed December 14, 1920:

Plaintiff’s counsel place much reliance on their claim that the plaintiff was a licensee and that the defendant owed a high standard of care to persons traveling on its right of way. The testimony showed that there were signs in large print reading “Private Property,” “No Thoroughfare,” “Keep Off,” posted in prominent places in the yards. *445The uses of the yard for loading and unloading merchandise and switching were such that it would not have been practicable to exclude persons who chose to enter them and travel along the track. The defendant seems to have adopted the only feasible course for giving warning of danger to persons coming upon the grounds.

But if it be conceded that the plaintiff was a licensee and that it was the duty of the company to exercise increased prudence and caution in operating its road and to keep a reasonably vigilant lookout to prevent injury to those using the grounds, still the proof falls short of showing defendant’s negligence. There is no evidence that the train was going faster than eight miles per hour. The accident did not occur at any crossing. The usual conflict of evidence as to the ringing of the bell and the blowing of the whistle is wanting. The undisputed evidence shows that the bell had been ringing constantly for some time before, and up to the time of, the accident; that the whistle had been blown for all street crossings, every few blocks, and twice again as signals to the man operating the block system. These signals were heard by him at his post several hundred feet more distant than the place of the accident. The whistle was sounded again as soon as the engineer saw any indication that plaintiff might turn toward the track. The plaintiff was not a child but an adult, and the engineer had no reason to expect that he would suddenly turn from a place of safety to cross the track. It cannot be said that there was not a vigilant lookout to prevent injury, because the engineer saw the plaintiff some distance ahead traveling parallel to the track in a place of safety.

Although it is argued by appellant’s counsel that the plaintiff became confused when he finally heard the whistle blown and jumped in the wrong direction to avoid injury, it is hardly claimed that the sounding of the whistle was a negligent act. The trial judge properly held that no negligence was established against defendant.

*446For about six weeks plaintiff had been in the habit of traveling on the defendant’s right of. way, and he was familiar with the situation and the use to. which the grounds were put. The yards were busy places; switch engines were being used frequently and there were about twenty passenger trains a day. Plaintiff knew that a train generally passed to the east about the time of day when this accident happened, but he supposed it had passed. When he went upon the tracks of defendant he did not look to see if any train was coming. Although there was no obstruction to view, he continued walking along, neither looking, nor listening to the ringing of the bell nor the sounding of the whistle, until, when the whistle sounded the third time, he became confused, according to his own account, and jumped in the wrong direction from a place of safety to one of danger. According to the plaintiff’s own showing he was walking beside a railroad track, paying no attention whatever to the coming or going of trains. He was at a place where if he had paid the slightest attention he would have heard the whistle and the ringing of the bell.

No claim is made by appellant’s counsel that the tracks should have been fenced or that the absence of a fence or other guard in any wa)*- contributed to the injury.

The offered proof of a declaration by a bystander was of doubtful admissibility at best. In our opinion there was no error in the ruling of the trial court on that subject.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on March 8, 1921.