I concur with my Brethren in their holding on the issue of discovered peril. But I most earnestly dissent from their holding on the issue of contributory negligence, and from their conclusion that, "inferentially," appellee "was relying upon this whistle to give him warning of the approach of any cars on that track." As I understand the facts of this record, this inference should not be drawn. As a further statement of the distractions that enter into this case, in addition to the statement made in the majority opinion, I give the following additional statement from the testimony of appellee:
"It never occurred those cars might hit me, but it did occur to me to get as far away from those cars that were passing me. They *Page 350 could not hardly have hit me unless I got in front of them. Sure it occurred to me to pass away and get over and go east, to get as far away from those cars as possible; that is the natural instinct, to move away. I thought of stepping over to Mr. Hill's, but the ties were uncovered where I started to cross, and the roadbed leading in and out of his office at that place was in that shape. I glanced over my shoulder and saw these cars. If I had not seen those cars passing on my left, I would not have crossed the track where I did, but would have naturally went on farther down north and crossed over where there were no ties exposed, but, seeing these cars on passed, or part of them that had already passed me, and knowing that there was the main line between me and those cars, instinctively I crossed immediately where the ties were exposed. In crossing that track, I was watching my steps on the ties to see that I stepped properly on the ties, sorter feeling my way from one to the other and looking in the direction of the string of cars on the left going down the other way, with my face angling to the left, which would be almost north, but a little west of north, watching the cars pass me going on down, and in that position I was feeling my way carefully across this track there and the ties were exposed, stepping from one tie to the other. I was careful, seeing where I was placing my feet so that I wouldn't stumble or fall. Going on down that track I stopped and looked to see if there were any cars coming on that other track. I turned before I stepped on the house track and looked back, and the cars were standing on this track that leads off to the left of the main line. I looked back just before I got up on the house track."
It seems to me that the facts of this case make the issue of contributory negligence one of fact, and not of law. According to appellee's testimony, less than 30 seconds after he first crossed the house track he was struck by appellant's cars. As to the care exercised by him when he first crossed this house track, he said:
"Going on down that track I stopped and looked to see if there were any cars coming on that other track. I turned before I stepped on the house track and looked back and cars were standing on this track that leads off to the left of the main line. I looked back just before I got on the house track. * * * I looked back when I started to cross the house track the first time to make sure the cars were going to stop; I looked back to see if the cars were standing on the left side of the main line and it was safe to walk across."
Where he was injured the ties were exposed and the walking was rough. Just as he stepped onto the house track in front of the approaching cars, he was watching the string of cars pass on his left. As to these matters he testified:
"In crossing that track, I was watching my steps on the ties to see that I stepped properly on the ties, sorter feeling my way from one to the other, and looking in the direction of the string of cars on the left going down the other way, with my face angling to the left, which would be almost north, but a little west of north, watching the cars pass me going on down, and in that position I was feeling my way carefully across this track there, and the ties were exposed, stepping from one tie to the other. I was careful, seeing where I was placing my feet, so that I wouldn't stumble or fall."
Also as he stepped onto the house track it occurred to him to cross over to Mr. Hill's office and give him the message about his milk. The care exercised by him when he crossed the house track, just a few seconds before, and the distractions he encountered, after first crossing the house track, are as strong in his favor as were the defenses against contributory negligence in the Kirksey Case reviewed in the majority opinion. After reviewing the facts of that case, the Supreme Court said:
"There remained for the jury the question of whether under all the facts and circumstances, including said distractions, a reasonably prudent person, in Kirksey's situation, would or would not have done substantially as he did."
On the proposition that "distractions" are sufficient to take the issue of contributory negligence to the jury, I refer to the authorities reviewed by me in my dissenting opinion in the Roan Case, 230 S.W. 1083.
I do not construe the Edwards Case, on which the majority base their opinion, as being in point on their holding. Edwards approached the railroad without exercising any care for his own safety. The record discloses no "distractions." He rested his safety on the performance of a duty owed him by the railroad company. The Supreme Court held that he was negligent in so doing. For, as said by the Supreme Court of the United States in Railway Co. v. Houston, 95 U.S. 697, 24 L. Ed. 542:
"One cannot require of another to take better care of him than he takes of himself."
But, as I understand the facts of this case, Barron was not looking to appellant to give him warning of the approaching cars. He did not even have in mind that cars might be approaching him on the house track. As an explanation of this fact and of his failure to look and listen for approaching cars he offered the care exercised by him a few minutes before and the distractions that entered into the case after he first crossed the house track.
Nor do I think this case should rest on a literal construction of the citation given in the majority opinion from the Kutack Case. In the Kirksey Case, supra, it seems that our Supreme Court clearly recognized that one could have "an unobstructed view of the railroad, so as to know of the approach of a train a sufficient time to clearly avoid any injury," yet because of "distractions" make *Page 351 contributory negligence a matter of fact. The citation given in the majority opinion from the Boyd Case must be the law; at least my dissent here is based on the principle of law there announced. The difference between me and my Brethren is not on this statement of the law, but on the facts. I think the facts and circumstances of this case raise an issue as to whether or not a reasonably prudent man would have acted as appellee did.
As I construe the majority opinion, they have convicted appellee of contributory negligence, against the verdict of the jury, on their findings that he "neither looked nor listened to see whether cars may have been approaching on the house track before he left the cinder path of safety and stepped thereon," and that "he was paying no attention whatever for his own safety at the time he stepped on the house track where he was injured." I concur with them in the finding that appellee neither looked nor listened for approaching cars on the house track before he stepped thereon. But this finding does not convict him of contributory negligence as a matter of law. In this state the general rule is that the failure of one to look or listen for an approaching train before stepping onto a railroad track does not, of itself, convict him of contributory negligence as a matter of law. And as I understand these facts, this case does not come within any of the exceptions to that general rule. But the majority make the further finding that "he was paying no attention whatever for his own safety at the time he stepped upon the house track, where he was injured." If this finding was made by the majority as a literal construction of the facts in the record, I am forced to dissent therefrom. Appellee was walking down the track in the ordinary manner, stepping carefully on exposed ties, avoiding stumbling, and, but for the danger from the approaching cars, certainly in the exercise of ordinary care; that is, walking as an ordinarily prudent man would have walked under the same or similar circumstances. Doubtless the majority of the court had in mind in this finding that appellee stepped onto the house track without paying any attention for his own safety in regard to cars approaching on that track. Such a finding is sustained by this record. At the time he stepped onto this house track, if a duty rested on him to have in mind the fact that cars might be approaching him, then he was not in the exercise of ordinary care, for he did not have that fact in mind. But the majority opinion recognizes that he was under no such absolute duty, for they say:
"Had the presence of these cars west of the main line and their discovery by appellee afforded any reason on his part to apprehend any danger to himself, and therefore his attention for the moment was upon these cars, there would be sound reason for the contention that, appellee's attention being thus claimed, he might have been excused from having failed to look or listen for the approaching cars on the house track which caused the injury, but appellee admitted expressly that he knew he was in no danger by reason of the presence of these four cars west of the main line, and well knew that the cinder path between the house track and the main line, which he was then traveling, was a perfectly safe place for him to be, notwithstanding the presence of these four cars west of the main line, and his only reason for fixing his attention upon these four cars was that it was `natural instinct' for him to bear them in mind and avoid them as far as he could."
Thus they recognize that a distraction growing out of one danger may excuse one for incurring another danger. In their argument on this point have my brethren drawn a sound distinction? Is it a sound legal proposition to say that only those distractions which threaten danger are sufficient to make an issue against contributory negligence? It seems to me that the rule should be that an issue is made against contributory negligence when distractions are in the case sufficient to hold the attention of a man of ordinary care and cause him to enter a place of danger without having in mind the possibility of being injured. Our books are full of cases, in addition to those reviewed by the majority, where one has approached a railroad crossing without looking or listening or paying attention for his own safety, in regard to approaching cars, and yet verdicts finding against contributory negligence have been affirmed. Possibly the best-known cases of this character rest on obscured crossings. An obscured crossing is not less dangerous than one with an open view — rather, it would seem, more dangerous. Yet the obstructions have excused travelers from stopping or looking or listening or paying attention for their own safety. It must be on the proposition that such obstructions so distracted the attention from the approaching danger as to make contributory negligence an issue of fact. But we have judicial authority for other distractions besides obscured crossings. Many of these are reviewed by me in the Roan Case, supra. So, while I agree with my Brethren that Barron stepped in front of the approaching cars without looking or listening or paying any attention for his own safety in regard to the approaching cars, yet, as he was not aware of his danger, and did not have the approaching cars in mind, and as his attention was fixed on and held by the other facts and circumstances which I have discussed, his failure to do the things found against him by the majority of this court did not make him guilty of contributory negligence as a matter of law.
As I understand the facts of this case, if *Page 352 an ordinarily prudent man, before stepping onto the house tracks, under all the facts and circumstances, including the "distractions," would have looked or listened or paid attention for his own safety — that is, had in mind that cars might be approaching him on the house track — then appellee was guilty of contributory negligence. But, if an ordinarily prudent man would not have looked or listened or paid attention for his own safety — that is, had in mind that cars might be approaching him on the house track — before he stepped onto the house track, he was not guilty of contributory negligence. This was for the jury, and they have answered the issue in appellee's favor. In my judgment this motion for rehearing should be granted, and the judgment of the trial court affirmed. But the majority of the court do not agree with me, and it is their order that the motion for rehearing be in all things overruled.