dissenting. — I am unable to concur in the conclusion reached in the foregoing opinion, reversing the judgment of the District Court; in my opinion it should be affirmed.
The only error which, in the opinion of my brothers, is *81found in the case is based upon the fourth instruction. Their views are set out in the 5th point of their opinion. In my judgment error prejudicial to defendant is not shown by the brief extract from the court’s instruction, set out in the opinion, even though it fails in my judgment, to present the true effect and purpose of the court as contained in the whole instruction, and the one immediately following it directed expressly for the guidance of the jury as to the law upon the same subject. But without attempting to justify the rule of the extract from the fourth instruction given in the opinion of the majority, I will proceed to quote the whole, instruction and the following one, remembering that instructions, in order to determine their correctness, as all other writings, when their true meaning and force are in question, must be considered as a whole.
“ 4. If you find that the ordinances of the city of Davenport, at the time of the alleged accident, prohibited trains of cars from running at a greater speed than six miles an hour, on the tracks within the corporate limits of the city, and that the train of cars, which struck and caused the death of deceased, was, at the time of such accident, running faster than such ordinances authorized, this would be negligence. But while this would be negligence, the defendant would not be necessarily liable therefor in this action, unless the death of deceased was directly attributed to the rate of speed at which the cars were running. If, at the time the deceased left the pavement, and started across the street in the direction of the railroad track, it would have been impossible to stop the train, or to so check the train as to avoid the accident, had it been running at the authorized rate of speed — that is, at six miles an hour — then, notwithstanding the rate of speed at which the train was running may have been greater than that allowed by the ordinances of the said city, and would, therefore, be negligence, yet, unless the accident is fully traceable to such excessive speed, and could have been avoided, had the speed of the train been no greater than that prescribed by the ordinances, then the accident would not be the result of such excessive speed, and the defendant would not be liable therefor in *82this action. The rule of law and the instruction of the statute being that, although a party may be guilty of negligence, yet, unless the injury complained of has been produced by this negligence, such negligence furnished no ground of action to the parties injured, or his representatives.”
“ 5. It is the duty of those intrusted with the running of railway trains to keep a reasonably vigilant look-out, and to use all proper care and caution to avoid injuries to persons who may be on the streets through which the track of the road passes. If the deceased was a child of two years old or less, and was unattended, and could have been seen while on the track, or in the street, and in the immediate vicinity of the track, by those in charge of the train, in time to stop it, then it was their duty to stop the train, and a failure to stop would be negligence; so, also, it would be negligence if the train could not be stopped in time to prevent the injury, because of the excessive rate of speed at which it was then traveling — that is, at the rate of speed greater than that authorized by the city — and if, in either case, injury was occasioned which resulted in the death of deceased, then the act producing it was a wrongful act, such as the statute quoted contemplates, and the defendant would be civilly liable therefor to the administrator of the deceased, provided the parents or those having the care of said deceased, exercised such ordinary watchfulness over its movements as its age and the proximity of its residence to external danger required, and their condition and circumstances in life admitted. If, however, the train was running at a reasonable rate of speed, and was under proper control and the deceased had so placed itself, or was so situated in the street, that those in charge of the train could not, with reasonable vigilance, see it in season to avoid the accident, then they would not be guilty of negligence, and the defendant would not be liable in this action.”
These instructions are explicit and easily to be understood, though objectionable somewhat on the ground of prolixity and verbosity. But with these things we have nothing to do, if the law embodied in them be sound. The rules they announce are these:
*831. The running of the train at a speed greater than that prescribed by the city ordinances would be negligence.
2. But, as an exception to this rule, defendant would not be liable for such negligence unless the death of the child was directly caused thereby, that is, by the unlawful rate of speed. This exception, which is in defendant’s favor, is stated in other and more explicit words in the following part of the instruction to this effect: If the train was running at an unlawful speed, and the accident could not have been avoided, if it had been running at the rate allowed by the ordinance, defendant is not liable. And here is introduced the part of the instruction that my brothers consider objectionable, which is to the effect that if tbe child was on the street, and had left the pavement and was walking toward the track, and at that time it would have been impossible to check the cars under the conditions above mentioned, defendant would not be liable.
But, it is said that the hypothesis stated of the child’s leaving the pavement while the train was so running, is not supported by the evidence; that the evidence is silent upon the subject, and no account is given therein of the whereabouts of the child for some time before it was struck by the cars. Let this be admitted. But the instruction in that view is not unfavorable to defendant. It states a hypothetical case in which defendant would not be liable. How can such a statement prejudice defendant?. It is different from a hypothetical case in which defendant would be liable. I cannot conceive that prejudice would result to defendant by the statement of the court that, under a certain state of facts, it would not be liable.
But there was, in fact, evidence before the court upon which the jury may well have found the very facts hypothetically stated in the instruction. The parents of the child lived on the n'orth side of the street; it was killed on the south track of the railroad. It wandered away from home, and must of necessity have crossed the pavement, the street and the north track of the railroad. It was out of the sight of those watching it but a very brief time — a very few minutes, ten or fifteen ; the child was less than two years old. There was a fence *84around the house of its parents. When last seen before its death, it was in a back room of the house. It escaped from the house, out of the yard, walked about fifty feet and met its death in ten or fifteen minutes from the time it was last seen. The train, at its ordinary rate of speed, would be from six to eight minutes in running over that part of the road from which the engineer could have had a fall view of the place of the accident and of the child if on the street. Certainly it cannot be said that there was no evidence from which the jury could have found that, “at the time the deceased left the pavement and started across the street in the direction of the track, it would have been impossible to have stopped the train or checked the train so as to avoid the accident, had it been running at the authorized rate of speed.” These are the facts stated hypothetically in the instruction. The same character of evidence that would authorize the finding of the facts would be sufficient to justify a contrary finding.
The instruction was properly given, because it was intended to meet the plaintiff’s theory of the facts of the case.
The instruction presents, with equal fairness, the defendant’s theory as stated in the opinion of the majority, namely, that the child was concealed near, the track when the train was approaching, and suddenly stepped before it. The last sentence of the fifth instruction presents this theory by a hypothetical caseto the jury,just as .the fourth does plaintiff’s, and clearly and correctly announced the law as applied thereto. The statement, therefore, in the opinion of my brothers, that defendant’s theory was ignored, is not correct.
As the child was not seen after it left the house by any witness who testified, the jury were left to determine by the instruction, from all the circumstances of the case, whether the theory of plaintiff or defendant was more consistent with the evidence and the experience of life.
In my opinion, the instructions are correct and free from the objections charged against them. Neither do I see how an intelligent and honest jury could be more influenced by the hypothetical statement of facts claimed by plaintiff, than by a like statement of those claimed by defendant. In other *85words, if the court may state a rule of law applicable to the facts claimed by defendant, viz: that the child lay concealed from the view of the engineer of the approaching train, and stepped on the track just before it, there was no violation of latv in stating the plaintiff’s theory for the like purpose of applying the law thereto.
The fifth instruction T do not think is objectionable. A child of two years of age is not endowed with reason which enables it to fiy from danger. Whatever instinct it does possess, giving it consciousness of present peril, will not guide it away therefrom, but is just as likely to lead it, when alarmed, directly to danger and harm. This is the daily experience of almost all men. The child being in the “ immediate vicinity ” of tire railroad — near it, should have been as readily expected to run before the train as away from it. This the engineer well knew, and was negligent if he did not operate his train in view of the fact, and, in order to secure safety of the child, stop until 'he saw the child in a place of safety.
I am thoroughly convinced that the judgment of the court below is without error, and ought to have been affirmed.