The first trial of this case resulted in a judgment for plaintiff in the sum of $3500. On appeal of defendant Ave reversed the judgment and remanded the cause on the ground of error in an instruction given at the request of plaintiff. (Williamson v. Railroad, 139 Mo. App. 481). Afterward plaintiff amended his petition changing the amount of damages claimed by him. Defendant filed an answer containing a general denial, pleas of contributory negligence and, assumed risk, and an averment that the train which inflicted the injury was engaged in interstate commerce.
The real issue presented by the pleadings and contested in both the first and second trials was whether or not the injury of plaintiff was caused by negligence of defendant under the rules of the humanitarian doctrine. The second trial resulted in a verdict and judgment for plaintiff ifi the sum of $6000, and again defendant appealed.
There is but little difference in the evidence introduced at the two trials and the case now before us is the same in essential features as that considered by us on the former appeal. We refer to that decision for a statement of the facts and shall mention in this opinion only facts about which there is some variance in the-two records. That the peril of plaintiff was produced by his own negligence is a fact about which there is no contro*545versy in the pleadings and evidence and we say, as we said before, “ were it not for the testimony of the engineer, we would, declare that plaintiff had no case” under the last chance rule. But we find the testimony of the engineer in the present record more favorable to plaintiff than his former testimony. From his statement of what he saw and what he did, the conclusion is irresistible that he fully realized the real peril of plaintiff when the engine was five hundred feet from the place of collision. That is to say he knew that plaintiff was in a position on the track from which it would, require some time to extricate himself and that plaintiff, though his face was turned towards the train, was oblivious to his peril. We quote from the engineer’s testimony:
“Q. How far from him were you when you first discovered him on the track? A. About five hundred feet.
“Q. How do you arrive at that estimate? A. I judge from the point that I seen the handcar that it was about five hundred feet.
“Q. When you first discovered him on the track, what was he doing? A. When I first discovered him on the track, I throwed on the emergency and shut off steam and grabbed the whistle and whistled two long and two shorts very shrill to alarm him to get off the track.
“Q. How long did he continue in the position he was in when you first discovered him, after you discovered him on the track? A. I had traveled two hundred or three hundred feet when I stuck my head out of the window and hollered at him.
“Q. How close did you get to him before his position on the track changed? A. About sixty feet.
“Q. How long did it take you to give that signal which you have spoken about—two long and. two short blasts of the whistle? A. Pulled, the whistle open much longer than at the road crossing, trying to make him get off the track.
*546“Q. About what distance did you cover with the engine and train while you were making that signal? A. Three hundred'or four hundred feet.
“Q. How do you arrive at that? A. What?
“Q. How do you estimate that? . A. I judge from the lay of the land as I passed over it day after day.
“Q. How close to Mr. Williamson were you when you ceased giving that signal with the whistle? A. Sixty feet.
“Q. I mean with the whistle? A. Very near that, I still had hold of the whistle lever.”
These efforts of the engineer to save plaintiff by making an emergency stop and by trying to attract his attention by continuous whistling strongly indicate that the engineer had actual knowledge of the peril. No matter- how negligent plaintiff may have been in placing himself in a position of danger there can be no question about the. duty of the engineer in the situation disclosed. Knowing that plaintiff was in peril and was unaware of that peril it became the duty of the engineer to make reasonable use of the means at hand to avert the injury, and a negligent breach of such duty would constitute actionable negligence. The very recent decision of-the Supreme Court in Nivert v. Wabash Railroad (not yet reported), to which our attention has been called by defendant, does not hold to the contrary. Paraphrasing a portion of the opinion of Woodson, J., plaintiff had no right to-assume a perilous position on the track and to rely upon the engineer to save him from injury, but we add that such culpability of plaintiff gave the engineer no right, after he fully appreciated the peril of the plaintiff, wantonly or negligently to injure plaintiff when, by the exercise of ordinary care and common humanity,' he could avoid the injury. As was well said by Lamm, J., in his concurring opinion- “There is a class of cases where trackmen are seen to be in danger and seem to be oblivious to it where an imperative duty *547arises to warn and, if possible, stop before running them down.”
Plaintiff bas succeeded in bringing himself within that class by evidence, contradictory of the statement of the engineer, tending to show that no effort was made to stop and that no.warning signal was given by the whistle. The evidence was substantial and. raised the issue of fact of whether or not the engineer after discovering the peril reasonably exerted himself to avoid the injury. The learned trial judge committed no error in overruling the demurrer to the evidence.
Objections are urged against the rulings of the court on the instructions, but we find the instructions free from prejudicial error. We sustain the contention of defendant that the verdict is excessive. Without going into a recital of the injuries we rule that the verdict of $3500 given at the first trial reached the maximum boundary of the discretion allowed the jury by law and that the second verdict and judgment are excessive in the amount of $2500. If, within ten days from the filing of this opinion, a remittitur of $2500, be filed by plaintiff the judgment will be affirmed. Otherwise it will be reversed and remanded.
All concur.