On application for a rehearing, the following opinion was afterwards delivered:
Per Curiam.—We do not, at all, deny that in cases like the present, when the plaintiff has contributed proximately to the injury of which he complains, and there is nothing else in the transaction, there can be no recovery. We will not enter into the inquiry of comparative negligence. On the other hand, we maintain, with inflexible purpose, the general doctrine we declared in Tanner v. The Louisville & Nashville Railroad Co., that primary negligence of one party does not absolve the other from continued diligence, even to the last moment of time, when the catastrophe may be averted. We intended to decide, and now repeat it, that if one, by his-own negligence, put himself in peril—yet, if the party sought to be charged, after discovering the peril, or, after being placed in a condition where, if diligent, he would have discovered the peril in time to avert the catastrophe, fails to exert proper diligence, which, if exerted, would probably prevent the disaster, this is culpable negligence, to which the primary negligence of the plaintiff is but remotely contributory. We asserted, and again assert, that if those in-charge of a train, engaged in the business of switching cars, within a city, where people are constantly passing, back the train, having box cars in front of the engine, so as to conceal the track on which the train is moving, from the view of those having charge of it, and have no watchman or employee on or near the train to look ahead, and, if need be, to warn persons of the approaching danger, or have the train stopped ; and if injury to any person be thereby inflicted, this is, per se, negligence, for which an action will lie, unless the party injured, after discovering his peril, fail to use proper’ exertions to extricate himself therefrom. If he did so fail, this would be proximate, contributory negligence, which would deprive him of all right to recover.
We are aware that some adjudged cases hold the converse of this proposition; and many, perhaps a majority of them, state the proposition broadly, without drawing the distinction which we have attempted. Perhaps the distinction was-unnecessary in those cases. But whether so or not, we adhere to our views, and decline to follow cases that assert the contrary doctrine. We do not, in this, intend to declare a rule that is stricter, or less strict, than that declared in Tanner v. L. & N. R. R. Co. supra.
And we adhere to our construction of the act “ to prevent homicides,” and the right of the personal representative of a married woman to maintain the action therein provided. Any other construction would leave no remedy whatever,. *283when the person whose death was “ caused by the wrongful act or omission of another,” was a married woman. The right and remedy are the creatures of the statute; no common law action could have been maintained in such a case; and the rule in such cases is, that only the action which the statute provides will lie.
The application for a rehearing is overruled.