(after stating the facts.) We find no error in the instructions given by the court to the jury. They correctly and concisely declared the law applicable to the case.
It is conceded that Evans was guilty of negligence, which contributed to his death, in failing to look and listen for the approaching train, and the case turns solely upon the question whether the agents and servants of. the railway company in charge of the locomotive saw him upon the track in time to have prevented the injury by the exercise of proper precaution, and, seeing him, whether they exercised proper care and precaution to prevent.the injury.
The jury, in their special verdict, found that the engineer discovered the deceased ahead of the locomotive a “sufficient distance to avoid injury,” and the testimony was sufficient to warrant that finding. The track was clear, no obstructions intervened for a distance of three hundred yards, it was in the day time, and the witnesses saw the engineer and fireman in the engine occupying positions from which they must have plainly observed the men upon the track in front of the approaching train. These facts were not denied, and appellant made no effort to prove to the contrary, though the engineer was present at the trial, and was introduced as a witness by appellee as to his familiarity with the track through the town of Mulberry.
The contributory negligence of a person injured is no defense where the direct cause of the injury complained of is the omission of defendant, after becoming aware of the injured party’s negligence, to use a proper .degree of care to avoid the consequence thereof. Little Rock & Ft. S. Ry. v. Cavenesse, 48 Ark. 106. The true rule which runs through the repeated decisions of this court on the subject is stated in Little Rock & Ft. S. Ry. Co. v. Pankhurst, 36 Ark. 377, as follows: “One who is injured by the mere negligence of another cannot recover at law or equity any compensation for his injury, if he, by his own or by his agent’s ordinary negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware pf the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 46; Little Rock, M. R. & T. Ry. Co. v. Haynes, 47 Ark. 497; St. Louis, I. M. & S. Ry. Co. v. Monday, 49 Ark. 257; St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513; Kansas & A. V. Ry. Co. v. Ritzhugh, 61 Ark. 741
In St. Louis, I. M. & S. Ry. Co. v. Wilkerson, supra, this court said: “If the employees of .a railroad company in charge of its train see a man walking upon its track at a distance ahead sufficient to enable him to get out of the way before the train reaches him, and are not aware that he is deaf or insane, or from some other cause insensible of the danger, or unable to.get out 'of the way, they have a right to rely on human experience, and to presume that he will act upon the principles of common sense and the motive of self-preservation common to mankind in general, and will get out of the way, and to go on without checking the speed of the train until they see he is not likely to get out of the way, when it would become their duty to give extra alarm by bell or whistle; and if that is not heeded, and it becomes apparent that he will not get out of the way, then as a last resort to check its speed, or stop the train, if possible, in time to avoid •disaster.”
That the doctrine stated in these decisions is well sustained by authority may be seen by the numerous cases cited therein, and it is not necessary to restate them here.
There is no testimony in the case to show that the deceased gave any visible evidence whether or not he was aware Of the approach of the train until his companion warned him after the locomotive had nearly reached him, and he made the futile attempt to escape; and if the danger signals had been sounded by the operatives in charge, they would have had the right to presume that he would step off the track and get out of the way. But, without having given any of the customary warnings of danger by sounding the whistle or ringing the bell, they had no right, unless deceased gave some evidence that he was aware of the approach of the train, to presume that he had heard the ordinary noises of the moving train, and would get off the track in due time to avoid the injury. This is especially true when the train was being run at an unusually high rate of speed, in a populous locality, and near the railroad station where it was customary to stop the train or reduce the speed, and where deceased, if he heard the noise behind him, doubtless expected it to be stopped, or the speed greatly reduced. Appellant is not liable in this case because its servants did not stop-the train, or because they ran the locomotive at an unusually high rate of speed; but it' is liable because of the fact that under those circumstances, seeing the deceased on the track ahead of the swiftly approaching train, and giving no evidence that he was aware of its. approach, they negligently failed to give him any warnings of the peril. Using the language employed in Georgia Pacific Ry. Co. v. Lee, 92 Ala. 270: “Such .failure, with such knowledge of the situation, and the probable consequences of the omission to act upon the dictates of prudence and diligence, to the end of neutralizing plaintiff’s fault and averting disaster, notwithstanding his lack of care, * * * is that recklessness or wantonness, or worse, which implies a willingness to inflict the impending injury, or a willfulness in pursuing a course of conduct which will. naturally or probably result in disaster, or an intent to perpetrate wrong.”
Judge Thompson says: “The most obvious suggestion of prudence and social duty requires that the engineer who is driving the train shall give warning signals to a trespasser whom he sees on the track in front of the train with his back to it, in sufficient time to enable him, after hearing the signals, to quit the track in safety; and this is so, although the trespasser sud-. denly and unnecessarily assumes a place in dangerous proximity to the track.” 2 Thomp. on Neg. § 1741; Railway Co. v. Smith, 62 Tex. 254; Houston & T. C. R. Co. v. Harris, 54 S. W. 629; L. & N. Rd. v. Coleman, 86 Ky. 556; 2 Rorer on Railroads, p. 1027; B. & O. R. R. Co. v. Schroeder, 69 Md. 551.
The instructions of the court properly set before the jury for their guidance these principles of the law, and we think the testimony was sufficient to sustain their findings thereon.
Affirmed.