On Motion for Rehearing.
As one of the grounds upon which appellant predicates its motion for a rehearing herein, it asserts the following proposition: “If the injured party by his negligence produces the situation that endangers the life of another, his exposure to peril in attempting to save that life would not be excused or justified.” Upon this issue the appellant requested the following special charge: “Under the evidence in this case, it was the duty of the deceased as a‘section foreman to keep a lookout for approaching trains, and he had no right to assume, under the facts in evidence, that a train would not be approaching at any particular time. Now, if you believe and find from the evidence that deceased did not keep a proper lookout for approaching trains, and that under the circumstances of this case his failure so to do was negligence, and his acts in the premises produced the occasion of his subsequent death, then you are directed that plaintiffs cannot recover, although you may further find and believe from the evidence that the engineer in charge of the approaching train did not exercise the care required of him under the circumstances.”
Appellant’s ninth assignment of error was as to the refusal of the court to give this charge. Upon this we said in the opinion heretofore rendered in this case: “The charge, refusal to give which is complained of in the ninth assignment of error, was properly refused because it requires the jury to ignore the right of the deceased to expose himself to danger to save the lives of others.” If Brooks failed to keep a proper lookout, and such failure proximately contributed to his injury, the appellees were not entitled to recover, and the court at the request of appellant so instructed the jury in the following language: “If you find that the deceased could have discovered the approaching train sooner than he did, and that his failure in this behalf was negligence, proximately contributing to the result, then plaintiff cannot recover, although you may further find that he lost his life in an effort to remove the car to prevent the accident to the passenger train.” The jury by their verdict said that the negligence of appellant was the sole proximate cause of the death of Brooks, and, if this be true, the negligence of appellant was the sole proximate cause of the danger to which the passenger train was exposed, in an effort to avoid which Brooká lost his life; and this is"sustained by the facts, unless Brooks, by voluntarily exposing himself to danger in order to save the passenger train from being wrecked, was guilty of contributory negligence. If the proposition of law embodied in the requested charge above set out, and here now insisted upon, is correct, it was error to refuse said charge. Keeping in mind the distinction between condition and cause, Is said proposition correct? One who suffers injury as the result of the negligence of another cannot recover damages for such injury if his own negligence contributed to the result. As a general rule, it is negligence for one to voluntarily expose himself to known danger. Why is it an exception to this rule if he does so in an effort to save another from death or serious 'bodily injury? Because negligence implies a failure to discharge a duty, and between the duty that one owes to look out for his own welfare, and the duty that he owes to look out for the welfare of others, to the extent at least of taking some risks to himself, the latter is the higher duty. “He saw his duty, a dead sure thing, and went for it, there and then.” And the decisions show that the courts in a Christian land are not disposed to be “too hard on a man that died for men.” 'See authorities cited in the Me-Vey Case, supra. Is this any the less a duty if the conditions under which another is about negligently to inflict an injury on a third party has been brought about by himself? We think not. Appellant should have taken notice of those conditions, which it knew, or by the exercise of ordinary care could have known, and should have governed its actions accordingly. Appellant has cited us to no authority to sustain its contention. In the absence of authority impelling us so to do, we will not hold that one thus situated who yields to the dictates of humanity forfeits the right of his wife and children to recover damages for his death inflicted by the negligence of another.
We do not deem it necessary to further discuss the other grounds of appellant’s motion for rehearing. Said motion is overruled.