dissenting, said:
I am unable to concur in the conclusion of the majority of the court.
The law, as I understand it, does not require that the defendant shall actually know of the danger to which the plaintiff is exposed in order to render the former liable for an injury to the latter. It is enough, if he has sufficient notice to put a prudent man on the alert, and he did not take such precautions as a prudent man would take under similar notice. This principle was enunciated in the case of Seaboard and Roanoke R. R. Co. v. Joyner’s Adm’r, 92 Va., 354, which was recently decided by this court, and was since reiterated in the case of Tucker’s Adm’r v. N. & W. R. R. Co. 92 Va. 549. Its application to the case at bar should, in my view, determine it in favor of the plaintiff.
The evidence shows that the plaintiff’s intestate, at the time he was run over and killed by the train of the defendant, was lying asleep upon its track,.between the rails. It also shows that he was discovered by the engineer as he lay there, though as an indistinguishable object, in time for him to avoid the injury; but as he was not recognized by the engineer as a human being until the train had approached so near that it could not be stopped in time to save him from injury, it’ is claimed that the defendant is not liable. The *42fact still remains that the presence of an unknown object upon the track, directly in the path of the rapidly-moving train, became known to the engineer in time to avoid the injury if he had used proper precautions. The discovery by the engineer of an object lying prone upon the track, which he was unable to distinguish, but to which he might owe some duty, and to which, as it turned out in this case, he owed the duty of protection, was enough to put a prudent man on the alert. It did arrest and fix his attention. He kept his eye upon it; but this could be of little avail, if in the meantime he made no effort to approach it with his train under control, and to be in readiness to discharge his duty to it, whatever that might be. It became his duty upon the discovery upon the track of such prostrate object, over which his train was obliged in its progress to pass, to sound the alarm and get his train under control in case the unknown object should turn out, on nearer approach and closer inspection, to be a human being. He did neither, but permitted the train to rush forward with unabated speed until he finally discovered that the unknown object was a small boy asleep upon the track, when it was too late to save his life.
It appeared in the case of Seaboard and Roanoke R. R. Co. v. Joyner’s Adm’r, supra, that signals were made to warn the engineer that there was danger ahead; but not apprehending-their meaning, and mistaking Joyner, who was sitting or lying upon the side of the roadway with his arm resting upon the rail and his head lying in the hollow of his arm, for an abandoned tie, he did not check his train until it was toe late to avert the accident. The railroad company was held liable.
This case is wholly unlike that of Tucker’s Adm’r v. N. & W. R. R. Co., supra, for there Tucker was not on the track, but was lying wholly oiúside of the rails, without the path of the train, and there was evidence that if he had remained in the position in which he was discovered as an unknown *43object, he would not have been struck, or hurt, by the passing train. He was not thought to be a human being. The track was clear. There was nothing in that case to cause a prudent man to think that there was danger ahead.
I do not understand the law to be that a railroad company is under no obligation to check or stop its train upon the discovery of an object lying upon its track, which the engineer cannot distinguish, but which yet arrests his attention and warns him of danger, until he actually ascertains that the unknown object is a human being, which is, to my mind, the practical result of the decision made to-day. The contrary principle is, I think, abundantly supported by authority, and accords with the dictates of humanity.
Cardwell, J., concurs with Riely, J.
Reversed.