Dissenting opinion by
Rombauer, J.My associates, as well as myself, believe, that the opinion filed herein, is contrary to some previous decisions of the supreme court, and that the cause is a proper one to be certified to that court, under the provisions of section sis of the constitutional amendment, adopted November 4, 1884.
The difference between my associates and myself is, *161that they hold the opinion to be in conformity with the last previous ruling of the supreme court on the question of law involved, while I am of opinion that all the cases decided by the supreme court may be reconciled, and lead to a result adverse to the right of the plaintiff’s recovery in this case. But I am still further of opinion that even if all the previous rulings made by the supreme court on this subject could not be reconciled, still, undef the authority of Lenix v. Railway Company (76 Mo. 86), which is the last previous ruling of the supreme court on this question, the plaintiff in this case, on the facts shown, can not recover.
In that case, Chief Justice Sherwood, speaking with the concurrence of all the judges, says: “The duty of one who goes upon a railroad track, even where there is a street crossing, as is not the case here, has been so often defined, that it grows monotonous to be continually reiterating the same principle. He must use his eyes and his ears, he must look and listen, and if he fails to observe these most obvious dictates of prudence, when approaching such dangerous machinery as a moving railroad train, he has no room for just complaint if he suffers injury solely because of his neglect to use such reasonable and prudent precautions, although the railroad company has been remiss in its duty in giving the customary signals.”
The testimony is fully set out in the report of that case. An examination will disclose the fact, that it was far more favorable to the plaintiff, than the testimony in this case. The jury found for the plaintiff below and the supreme court reversed the judgment without remanding the cause, holding that under the facts of the case the plaintiff was debarred of any recovery.
The supreme court, in its ruling in that case, merely *162followed a long line of decisions on the same subject, asserting the same, in terms more or less positive, as demanded by the facts of each particular case. See Maher v. Railroad Co., 64 Mo. 267; Fletcher v. Railroad Co., 64 Mo. 484; Harlan v. Railroad Co., 64 Mo. 480; Moody v. Railroad Co., 68 Mo. 470; Nelson v. Railroad Co., ibid 593; Henze v. Railroad Co., 71 Mo. 636 ; Rains v. Railroad Co., 71 Mo. 164; Zimmerman v. Railroad Co., 71 Mo. 476; Kelley v. Railroad Co., 75 Mo. 138.
Several of these cases recognize one exception engrafted on the general rule, namely, that notwithstanding his own negligence, which would otherwise debar him, the plaintiff might still recover, provided those in charge of the train might have averted the calamity by the exercise of reasonable care, after becoming aware of the danger to which the plaintiff was exposed. This exception is dictated by the plain rules of humanity. It means this and no more, that recklessness on the one part does not excuse wilful recklessness on the other. That the modern juggernaut can not claim its victims as a matter of right, though they prostrate themselves headlong before its wheels. But it does not in my opinion mean, that that element must be submitted to the jury regardless of the facts of the case, because, if that is its meaning, then the exception was denied in Lenix v. Railroad Co., supra, and that is the last decision of the supreme court on that subject.
The only just mode to give effect to the exception, whenever the facts of the case justify it, is to declare that although the evidence discloses that the plaintiff was himself reckless, he shall not be debarred of his recovery, if he shows affirmatively that the employes of the defendant, after discovering his danger, might have *163averted the calamity by the exercise of reasonable care. To say in one breath that the plaintiff can not recover, because he was reckless himself, though the defendant’s servants failed to blow the whistle, failed to ring the bell, or failed to have a man stationed at the rear car of a train moving backward, all of which are legal requirements, and then say in the next breath that he might :still recover, if by the ringing of the bell or blowing of the whistle, he would have been warned away, or by the stationing of a man on the rear car he might have been discovered and warned away, savours of inconsistency.
Applying these propositions to the facts of this case, and they furnish no room on which the plaintiff’s recovery can stand. The uncontradicted testimony discloses that he was a track repairer, had been such for many years, and was thoroughly familiar with the dangers of his task. That at the place where he was working, engines and trains were moving to and fro, all the time. That it is a rule of track repair, that trains do not stop on account of men engaged in the work, unless they are signaled to do so, but that it is expected of the men repairing the track to get out of the way. That he was familiar with this rule. That the track on which he was working was free to view on either side of him for sev•eral hundred feet. That he was neither deaf nor blind, but in full possession of his faculties. That he could have seen the approaching train if he had looked, and could have heard it if he had listened, are incontestable physical facts, which can not be overthrown by his oath to the contrary. There is absolutely no testimony that he was seen in his dangerous position by any person in •charge of the train. As far as there is any testimony on the subject, it tends to show that he was not seen. Conceding, however, that he might have been seen by a per*164son stationed at the rear of the train moving backward, still there is no testimony whatever that the train conld have been stopped, or that he could have been warned away after he might have been discovered in a position of danger.
How near must a train approach before a track repairer, whose duty, under the rules, it is to get out of the way, can reasonably be supposed to be in a position of danger ? How near must a train get to him before the parties in charge thereof can be presumed to know that he neither sees nor hears the approaching train, and should be warned 1 Is the degree of diligence to which the law holds persons in charge of a train, to be increased in proportion to the recklessness of the person in danger ? This, indeed, would be holding out a premium to ■recklessness, which is but ill designed to promote that safety to life and limb which, after all, is the ultimate aim of the statute.
In conformity with what I deem to be the adjudged law of the state, as well as the rule dictated by reason and a sound policy in this case, I am unable to agree with my associates.
It is my opinion that the judgment of the trial court should be reversed.