(after stating the facts as above). The record shows that upon the conclusion of the evidence for the plaintiff the defendant moved the court to take the case from the jury and dismiss it. In denying that motion the court said:

*714 The record further shows that upon the conclusion of the defendant’s evidence counsel for the defendant said:

After argument and in response to the motion last mentioned, the court said:

And later:

With its decision subsequently granting that motion, the court filed an opinion in which it said, among other things:

After making a quotation from the testimony of one of the witnesses, the trial judge proceeded to say in his opinion:

[1] As will be readily seen, the court below rendered its final decision upon the ground that the manner in which Perkins came to his death was purely conjectural, and reached that conclusion by contrasting and weighing the evidence on behalf of the respective parties. In passing upon the motion which gave rise to the judgment complained of, the court below had no right to weigh the evidence that had been given in the case and determine on which side it preponderated; on the contrary, it was bound to take the most favorable view for the' plaintiff of the evidence introduced on her behalf, and of all inferences that could be reasonably drawn therefrom by reasonable men, to the exclusion of the evidence on behalf of the defendant. Mt. Adams, etc., Railway Co. v. Lowery, 74 Fed. 463 , 20 C. C. A. 596 ; Felton v. Spiro, 78 Fed. 576 , 24 C. C. A. 321 ; Jenkins & Reynolds Co. v. Alpene Portland Cement Co., 147 Fed. 641 , 77 C. C. A. 625 , and numerous cases there cited. See, also, McDermott v. Severe, 202 U. S. 600, 604 , 26 Sup. Ct. 709, 50 L. Ed. 1162 ; Texas & Pacific Railway Co. v. Cox, 145 U. S. 593 , 12 Sup. Ct. 905, 36 L. Ed. 829 ; Rochford v. Pennsylvania Co., 174 Fed. 81 , 98 C. C. A. 105 ; Winters v. Baltimore & O. R. R. Co., 177 Fed. 44 , 100 C. C. A. 462 .

[2] Turning to the record, we find that there was evidence given on the trial on the part of the plaintiff tending to show that the deceased at the time of his death was 26 years of age, in perfect health, was 6 feet in height, and weighed about 200 pounds; that he was a man of good moral habits, very careful and cautious, and attended *716 Strictly tó his business; that on the 27th of March, 1908, a train crew of which Perkins was the locomotive engineer — his engine at the time being No. 58 — left Spokane, Wash., for Kendrick, Idaho, and remained there that night; that the next day they made three trips down the mountain with the engine preceding its tender, and made the same number of trips on the 29th of March in the same manner; that they then received orders to back down the mountain as far as Clyde’s Spur and pick up an “outfit train” with engine No. 340; that engine No. 58 was larger than the other engines run on that part of the defendant company’s system, and that bridge 182 was narrower than any of its other bridges, and was more than 2 feet narrower than bridges 180 and 181; that bridge 182, where the accident happened', was a one.-t'russ bridge built of wood, the truss being 15 feet in length and standing about 5 feet above the rails; that one Hines was Perkins’ fireman at the time, and that one Kenjoski was the head brakeman of the crew, and that a man named Oldham took Perkins’ place as engineer upon his death. Hines testified that he had crossed bridge 182 hundreds of times, and that engine 58 cleared the truss by “less than a foot;” and Kenjoskhs testimony was that in backing down west at the time of the accident the engine was moving at the rate of about 10 miles an hour with a grade of about 2 per cent., and that in going through bridge 182 engine 58 cleared the uprights on the side from a foot to eight inches. The last-mentioned witness also testified that an. engine while in motion would sway from three inches to a foot. There was also evidence, given on. the part of the plaintiff tending to show that the air brakes on the tender of engine 58 were connected improperly, in consequence of which' there was no braking power so far aá the tender was coñceiüied, and that that was discovered after the'crew left Spokane; that Perkins and Hines undertook to connect the brakes properly but were unable to do so, and that at Troy, Idaho, while waiting for- further orders, Hines was instructed by Perkins to get a wheel and rig up a hand brake, which was done about an hour ánd a half before Perkins’ death; that a hand brake is put on a tender as an auxiliary to the power brakes. Hines also testified in respect to' the necessity for a brake on the tender as follows:

Oldham, the engineer who took Perkins’ place upon his death, also testified that braking power on a tender is necessary because otherwise the tires are liable to- be heated and loosened, and that without the use of driver brakes it would be necessary to use á hand brake on the tender.

.Hines, the fireman, further testified that he last saw Perkins alive when they were about 100 or 150 yards from bridge 182; that the engine was then backing down, westerly -towards it, moving at about 10 miles an hour, and that as the engine was backing going west the engineer was on the south side, and at the time was standing in the *717 gangway engaged in tightening the hand brake of the tender, which was located about one foot from the outer edge of the tank. Hines was also questioned and answered as follows:

Oldham was also questioned and answered, among other things, as follows:

There was also testimony given to the effect that there were handholds on the tank and cab to take hold df in leaning out, one being-on the tank and the other on the cab.

Hines, the fireman, testified that just shortly after they got on the curve after passing bridge 182, the engine commenced to pick up speed, and that he then remarked to Kenjoski, “What is the matter with that fellow that he don't slacken that engine up — -we are going to go into the ditch;” that the engine kept on increasing speed, and that he looked over the boiler, and Perkins was not there, whereupon he stopped the engine and went hack and found Perkins on the bridge with his neck broken, and with his feet in the direction in which the *718 train had been running; that is to say, to the west. He also testified that after the engine was stopped he found that the hand brake on the tender was set.

There was also given on the trial this testimony in respect to the condition of the body of the deceased, when the plaintiff was questioned and answered as follows:

And the witness Dunn testified, among other things:

Oldham also testified that the day after the accident'by which Perkins lost his life, in going through bridge 182, he stopped and found adhering to the inside edge of one of the upright pieces at the entrance to the bridge, about 6 or 7 feet above its deck, about 20 or 30 hairs which he testified were of the- same color as Perkins’ hair, a lock of which was shown to .the -witness.

Surely -there -was here testimony tending to show, not only negligence on the part of the defendant company in not having the tender to its engine properly equipped with air brakes, and in maintaining a bridge too narrow for the proper operation of its road, but also tending to show that Perkins lost his life in the discharge of his duty while operating the defendant’s engine. He was, according to the testimony of the fireman, last seen alive almost immediately before the engine reached the bridge, being then engaged in tightening the hand brake of the tender, immediately after which, according to the testimony, it was his duty to look and see whether the brake was properly set, the performance of which duty required him to lean out from the gang plank by means of the handholds on the cab and tank, thereby necessarily lowering his head and bringing it in contact with any intervening obstruction. There was testimony to the effect that the brake on the tender was found set almost immediately after the accident, and the law presumes that the deceased also performed his duty in looking to see that it was properly set. Texas & P. R. R. Co. v. Gentry, 163 U. S. 353, 366 , 16 Sup. Ct. 1104, 41 L. Ed. 186 ; Baltimore, etc., R. R. Co. v. Landrigan, 191 U. S. 461, 474 , 24 Sup. Ct. 137, 48 L. Ed. 262 ; Northern Pacific Railway Co. v. Spike, 121 Fed. 44 , 57 C. C. A. 384 ; Adams v. Bunker Hill & S. Min. Co., 12 Idaho, 637 , 89 Pac. 624 , 11 L. R. A. (N. S.) 844; Burns v. Chicago, M. & St. P. R. R. Co., 69 Iowa, 450 , 30 N. W. 25, 28 , 58 Am. Rep. 227 ; Louisville & N. R. R. Co. v. Hahn’s Adm’r, 135 Ky. 251 , 122 S. W. 142 ; 9 Encyc. of Evidence, pp. 917, 918, 919, and cases there cited. *719 That the cause of an accident may be inferred from circumstances does not admit of doubt; and, as the testimony that has been herein set out must be taken as true in view of the verdict of the jury is it not a circumstance tending to show that Perkins was performing the duty of looking to see that the brake was properly set, when within a few seconds, or minutes at the longest, his dead body was found on the bridge over which the engine had just passed, and on the same side of the track that he rode, with his feet in the direction the engine was moving, with slivers of wood (of which material the uprights of the bridge were composed) in his face “clear up into his hair a way,” and with his face looking as if, according to the testimony of one of the witnesses, it had been crushed in, and, according to that of another, as if “something had scraped his face clear back and broke the hide loose in several places” ? And is it not a further circumstance tending to the same conclusion that the next day, according to the testimony of one of the witnesses, strands of hair were found in the edge of one of the upright pieces at the entrance of the bridge, similar to the hair of the deceased? Undoubtedly so. The case in truth was peculiarly one for the jury to determine whether or not the death of the deceased was occasioned by the alleged causes.

“Twelve men,” said the Supreme Court in Railroad Company v. Stout, 17 Wall. 657, 664 ( 21 L. Ed. 745 ), “of the average of the community, comprising men of education atid men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer, these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that 12 men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts occurring than can a single judge. In no class of cases can this practical experience be more wisely applied than in that we are considering. We find, accordingly, although not uniform or harmonious, that the authorities justify us in holding in the case before us, that although the facts are undisputed it is for the jury, and not for the judge, to determine whether proper care was given, or whether they establish negligence.”

It results that the action of the court below in granting the motion for judgment notwithstanding the verdict was erroneous and must be and hereby is reversed, with costs to the plaintiff in error, leaving the judgment entered upon the verdict in full force.