(dissenting):
This case has been before two juries, and each one found that the defendant did not, in carrying an intoxicated passenger, use such care to carry him safely and securely as the law of their contract and the exigencies of the occasion demanded. Three facts of some bearing in certain aspects of the case were brought out on this trial which did not appear on the first trial at all, or with the same distinctness and certainty: (1) On the first trial, the plaintiff'did not say that he was not notified by the conductor to get off the platform. On this trial he denies that the conductor made any such request;" and, as to the making any such request at the instance of plaintiff’s father, his denial is supported by the testimony of another witness. (2) On the first trial, the conductor, in his evidence, stated that it was a rule of his company, “if the passenger refused to leave the platform, the conductor should stop the train, and put him off', or make him go inside.” On this trial the defendant company proved by the same conductor that they had no such rule at that time, and had none such until the January following, that his statement on the first trial was an error. (3) On the first trial, the conductor testified that he had asked the plaintiff twice before that time (that time made the third time) to go in, and also one of the brakemen had tried to get him in. This time the conductor testified that Graves, one of the brakemen, insisted on the plaintiff’s going in; that they had several words about it, and came near getting into a racket. “In fact, I had to go to Graves, and tell him not to go too fast with him.” (4) The tenor of the rest of the testimony is very much the same, except that the fact is now brought out more distinctly that plaintiff’s rea*197son was submerged with whisky; that, before he fell off, his ordinary rational faculties wei’e so far gone that he was unconscious of his incapacity to take care of himself. He did not appreciate the danger of riding on the platform; was rash enough to sit down on the platform with one foot on the step; and was utterly heedless- of the probable consequences of such conduct. This part of plaintiff’s ease, constituting the state of negligence, the remote cause of the injury, the condition in which the conductor’s failure and refusal to bring him in off the platform intervened as the sole proximate cause of the injury, is now, in my opinion, put beyond the reach of any serious questioning. This young man, twenty years of age, obviously intoxicated to some degree of drunkenness, was accepted by the railroad company as a passenger, under the common-law obligation to carry him safely and securely. When he and his father entered the train, the son stopped on the platform. The father was a witness on the first trial. He died before this one, but his testimony on the first trial was read to the jury on the second. He says that becoming uneasy, he went out, and told his son he had better come into the car. The plaintiff'told him he would come in, in a few minutes. As he did not come in, the father told the conductor to go out, and bring him into the car. The conductor went out, and came hack without him. “And he came to me, and told me that he was in no danger; as long as they didn’t stagger, they were all right.” The conductor’s evidence on this point is: “John S. Fisher wanted me to go out and speak to his son. He said that he thought he was drinking a little, and he was afraid he would get hurt. I didn’t go right away, but after a little I did. It was between there and Seymore Station. That made three times that I had asked him to come in. That time he got very angry, and, using his own words, said, ‘He had paid his fare, and he would ride where he damned pleased.’ I went back, and told him his son was sitting on the platform. He had been standing down on the car step. To relieve his father, I said I didn’t believe his son was drinking enough to fall off.” At another place, he says it was a dangerous place for a sober man to ride, and still more so for a drunken *198one. He thus quieted- the apprehensions of the father for a moment, for in less than ten minutes the young man was thrown off. Mrs. Judge Brannon, the aunt of the plaintiff, two or three days after the accident, was on the train going over to Buckhannon. On this point her testi-mdny, certainly competent in fact, and for the purpose of discrediting the conductor, and no where objected to, is as follows: ‘‘The conductor came to me, and asked me to come to the rear of the train, and look where the accident happened. When we returned to our seats, he sat down by me, and commenced to relate the whole affair. He said that Johnnie was standing on the platform, and was intoxicated. lie said John S. Fisher had requested him to go and bring him into the car. He said he did not tell him to come in, from the fact that it would raise an excitement. He said he told Mr. Fisher his son was not drunk enough to be in any danger; and about ten minutes after that he fell off, and he never hated anything so much in his life.” Some comment is made in the opinion of the majority of the court on a part of the testimony of Mrs. Judge Brannon which is incompetent, because it gives the admissions of the conductor made at a time when it was not a part of the res gestee. See 1 Am. & Eng. Enc. Law (2nd Ed.) p. 1143. This, however, does not apply to the whole of her testimony. None of it was objected to when the question was asked and the answer given. There was no motion to strike out, or for instruction to disregard it. It was not made one of the grounds for the motion for new trial. It is not assigned as one of the grounds of error, either in the petition or in the briefs or arguments of counsel. I do not think it the duty of the appellate court in such case to sift out the incompetent phrases suet sponte, where both parties wish it to remain in, because, perhaps, dispensing with the inconvenience of calling a witness who heard him say the same thing dumfervet opus. Besides it has a bearing on the credibility of the witness, who is contradicted by the plaintiff'on the question of the conductor’s having requested him to come in. It has been held that a party demurring to the evidence waives all objections to the competency of the evidence. Elliott, App. Proc. §§ 689, 781. *199The particular manner in which an admitted truth has been introduced into the cause as evidence does not seem to be of any importance. Chapise v. Bane, 1 Bibb, 612. But this, in my view, has no great bearing. I take the case for this occasion as the conductor himself and John H. Fisher, the father, have made it. This case is only an instance under the general rule that the contributory negligence of the injured party, in order to constitute a defense, must have contributed as the proximate cause of the injury. If it were the remote cause, or a mere condition of injury, it is no bar to the plaintiff’s action. It is not a proximate cause when the negligence of the defendant is an efficient intervening cause. 2 Wood, R. R. (Minor’s Ed.) p. 1448, § 319a. Contributory negligence of plaintiff is no bar to his action when it appears that defendant might, by the exercise of ordinary care, have prevented the injury in spite of such negligence. See Coasting Co. v. Tolson, 139 U. S. 551 (11 Sup. Ct. 653); Carrico v. Railroad Co. 35 W. Va. 389 (14 S. E. 12); Washington v. Railroad Co. 17 W. Va. 190. It is the absence of such as is required hy the circumstances. Blaine v. Railroad Co. 9 W. Va. 252. “Therefore, where the negligence of the injured party is seen by the employes of the railway company in time to prevent injury from such negligence, their failure to exercise care to prevent the injury will render their employer liable.” 2 Wood, R. R. p. 1449, note 1; Cooley, Torts (2d Ed.) p. 810; Pollock, Torts, 374 et seq.; 1 Beven, Neg. 176. Here the railroad company, hy exercising ordinary-care, had the last opportunity of preventing the accident. Bish. Non-Contr. Law, § 463; Thomp. Carr. Pass. 243; Beach, Contrib. Neg. § 33; 2 Redf. R. R. 255, 256; Patt. Ry. Acc. Law, §§ 44, 55, et seq.; Railroad Co. v. Cooper (Ind. Sup.) (22 N. E. 340); Toomey v. Railroad Co. (Cal.) 24 Pac. 1074; Freer v. Cameron, 4 Rich. Law, 228; Johnson v. Railroad Co. 20 N. Y. 65; 1 Shear. & R. Neg. § 99; Busw. Pers. Injury, p. 200, § 134; Smith, Neg. (by Whitaker) 374; Whart. Neg. §§ 306, 323, 340, 389a; Bigelow, Torts, 538.
To prevent injury to a passenger, the common carrier is bound to the highest degree of skill, care, and diligence, and generally liable for the slightest negligence; and th *200degree of care exacted is greater than that to be exercised in respect to a stranger or trespasser. Carrico v. Railway Co. 35 W. Va. 389 (14 S. E. 12); 2 Rap. & M. Ry. Dec. Dig. 138-140; 1 Harris, Dam. Corp. § 341; 2 Am. & Eng. Enc. Law, p. 748. Whether the negligence of plaintiff was the proximate cause is a question for the jury. Sheff v. City of Huntington, 16 W. Va. 307.
Although the general rule is that no man by his wrongful act can impose a duty on another, yet this does not apply where the efficient, direct, and sole proximate cause of the injury intervenes between the plaintiff’s state of negligence and the damage complained of. There is nothing remarkable about this case but the exceptional distinctness with which it exemplifies and makes the reason of this rule. Taking alone the evidence of the conductor, we have a case of the plaintiff in a state of negligence riding on the platform, unconscious of his incapacity to take care of himself, heedless of the danger of falling off. This goes on under the eyes of the conductor from the time plaintiff entered the train until he fell off. His drunkenness was obvious. He was drinking when he came on, and kept drinking as he rode. His recklessness of danger, his heedlessness of the probable consequences of such conduct, were equally obvious, and observed by the conductor; for he saw him standing on the steps, saw him down on the platform with one foot on the step. Pie requested him to come in, as he says, more than once, and always unavailingly. He saw the brakeman Graves insisting on his going in, who, no doubt, w'oulcl have succeeded had he been let alone, certainly if he had been authoritatively assisted, but he made Graves desist. The father of the boy told the conductor that his son was drinking, and he was afraid he would fall off, and requested the conductor to make his minor son come in — bring him in. Here the remote cause, the state of negligence of the passenger thus riding on the platform, the mere condition of the injury, comes to so clear a marking off from the proximate cause of the injury that it is seen at once. In this sharpness with which the remote cause is separated in time and distinctness of efficiency from the proximate cause, the case is indeed remarka*201ble, but not in tbe 'rule of law of which it furnishes so striking an illustration.
The conductor, as he says, had twice tried the efficiency of a mere request, without effect. Why did he not exercise the care which the circumstances demanded? 2 Wood, R. R. p. 1426, § 318a. Why did he not discharge the duty which was so obviously dictated, and measured by the exigencies of the occasion ? Railroad Co. v. Jones, 95 U. S. 439, 442. The state of danger of the passenger was known to him throughout the whole seven miles. It was expressly brought to his attention by the anxious father, whose request was based on the apprehended intoxication of his son, and his exposure to danger. Isbell v. Railroad Co. 27 Conn. 404. Why did he not use the ordinary and necessary precautions for his safety ? Carrico v. Railway Co. 35 W. Va. 389 (14 S. E. 12); Fisher v. Railroad Co. 39 W. Va. 366 (19 S. E. 578). Instead of discharging the plain and imperious duty imposed upon him in such circumstances, he returned to the father, and told him his son was in no danger. Why did he not make him come in ? “Bring him in,” that was the language of the father’s request. Any conductor of ordinary knowledge, care, and prudence, seeing what he saw, would have done so, according to the finding of two juries. But he tells us on this trial that the company had no rule requiring him to make the passenger riding on the platform come in, and, if he refused, stop the train, and put him off'. But he needed no rule. The father of the minor had explicitly requested it. He saw for himself the urgent necessity of it; and a statute made for such cases, constituting him a conservator of the peace, authorized and enrpowered him to command it, and to enforce his command, without regard to any rule of the company. Code, c. 146, s. 31. The common-law itself makes him a quasi officer, clothed pro hac vice with such powers amply sufficient to have saved this drunken boy from the consequences of his own folly. But the statute evidently contemplates that such a rule will be made. Code, c. 54, s. 34. How came it, we may remark in passing, that this company was running its trains without having this ordinary rule on this important subject? But, in my opin-*202ion, it was plainly the right of this conductor to put an end to this passenger’s riding on the platform; and, at least, after the request of the father, it was as plainly his duty as his right, unless we are to hold that the exigencies of the occasion then staring the conductor in the face, which dictated and measured the duty, were met by doing only, and that for the third time, what he tells us in his testimony had then become a vain and idle thing. But, in my view, the case turns on no such question as the company then having a rule on the subject. The fact of plaintiff’s self incapacitation by drunkenness, and self exposure to danger, are the sole grounds put forward for setting aside the verdict and awarding a new trial. These are the very circumstances which constitute the state of negligence, the remote cause, the condition, the occasion, the exigencies of which dictated and measured the duty of the company, when brought to its notice in time to avoid and prevent the injury, and to comply with .the request of the father. This a conductor of ordinary knowledge, care, and prudence would have done; this the conductor in this case failed and neglected to do. And a jury of good and lawful men, of common sense, of common prudence, of experience in practical affairs, who had learned by observation what competent conductors of ordinary care and prudence do under such circumstances, were, by the issue made up, asked the questions: What was the duty of this conductor on this occasion ? what were the exigencies which imposed and measured the duty, if any ? and did the conductor discharge the duty of taking ordinary care under the circumstances ? This jury, like the first one, found that the duty of taking ordinary care existed, but was not discharged; that the neglect or refusal of the conductor to make this boy come in off the platform, as requested by his father intervened as the sole efficient and proximate cause of the injury. Who are to judge if not the twelve good and lawful men of common sense and common observation, of what is prudent under such circumstances, under the direction of the learned judge who presides at the trial? On what principle or rule of settled law, where the sole question is, what, would a competent *203conductor of ordinary care and prudence do in such a case (3 Rap. & M. Ry. Dec. Dig. p. 287 et seq.) can the defendant ask this second verdict to be set aside? When and how is this litigation to come to an end? Is some essential point wholly without evidence, or does it manifestly appear that this conductor discharged the duty that the exigencies of this case imposed, when he left this drunken boy sitting on the platform, with one foot on the step, and came back and told his father that he was in no danger ? No doubt, they had heard the learned circuit judge instruct the jury that if the plaintiff in the given case was drunk, and sitting on the railway track as a trespasser, and his peril was discovered in time by those in charge of the train to have prevented injury, and those in charge of the train did not use proper care and due diligence to avoid the accident, and damage resulted, the defendant company was liable. See Raines v. Railway Co. 39 W. Va. 50 (19 S. E. 565); Railway Co. v. Joyner’s Adm’r (Va.) 23 S. E. 773; Bish. Noncont. Law, § 1037. How is it possible to expect the jury to see and understand why less care is due the drunken passenger who exposes himself to danger than is due the stranger or trespasser on the track? We can not insist on the distinction, if any, between negligence by omission and negligence by commission, for it so happens that in this case we have them both; not only the willful disregard of the father’s request, but an active deception practiced upon him, which kept him, we may suppose, for the moment, from looking in his own feeble way after the safety of his son; but that moment was enough, for in less than ten minutes the boy was thrown off, and both feet were ground off up to the heel.
In my opinion, the plaintiff has brought his case within the meaning of the rule as laid down in Carrico v. Railway Co. 35 W. Va. 389 (point 9) (14 S. E. 12) and other cases, such as Isbell v. Railroad Co. 27 Conn. 404, cited in Whart. Neg. § 34, and within the true meaning and spirit of the rule as laid down in this case when here before, when read, as it must be, in connection with the above named Case of Carrico, cited therein with approval. See Fisher v. Railroad Co. 39 W. Va. 366 (point 3) (19 S. E. 578.)
*204If the conductor has used the ordinary precautions for the safety of his passenger, such as was dictated and measured by the occasion, seeing, as the conductor did, his dangerous position and conduct therein, and insensibility to and reckless disregard of such danger, the resulting injury would have been prevented and avoided. If the conductor had properly aided his brakeman Graves in his effort to make the drunken passenger go in off the platform, instead of commanding him to desist, the injury would have been prevented. If the conductor, seeing the condition, the place of riding, the conduct, and the manner of the accident, as we see it by his testimony, of this passenger, twenty years of age, and under the control of his father, had heeded his request to bring him in, instead of-misleading him as to the danger of his son, and thus throwing his actual guardian off his guard, the accident, in all likelihood, would not have happened.
To sum up: We have endeavored to show that the rule which governs this case is, if defendant had notice of plaintiff’s condition of drunkenness and dangerous position, but did not use ordinary care and 'diligence, such as was dictated and measured by the exigencies of the occasion, to prevent the injury, he is liable. This rule is supported by authority, and is based upon the broad principle of being in accord with our common sense of right and justice and of humanity, and to that extent it becomes binding law. As far as I can see, this case is not withdrawn from the operation of this rule by any other, based on public policy or general convenience. The maxim, “To him who consents no injury is done,” does not apply; for this passenger, when throrvn off, had reached the stage of having no rational will and no appreciation of his danger, as his conduct, exhibited to us through the eyes of the conductor of the train, abundantly show’s. This rule, applied to the facts of this case, requires that the judgment rendered should stand, in which is impliedly contained at least the following narrow point of law, which is all that the justification of the verdict of the jury requires (how much broader point of law it may comprehend we have no need to say): Where a conductor sees a drunken passenger, twenty years of age, rid*205ing continuously on the platform, and is requested by the father to bring him in, and, instead of taking such ordinary precautions for the safety of the boy as the circumstances known to him required, leaves him there, and, by misrepresentation as to his danger, throws the natural, actual guardian off his guard, and the injury complained of occurs by the boy falling from the running train, such conductor has thereby made his company liable for a breach of duty as a common carrier of passengers. Therefore, with all deference for the different opinion of others on this doctrine of the law, so difficult in its proper application, I think we ought to let this judgment stand.