dissenting. — I cannot concur in the conclusions of the foregoing opinion affirming the judgment of the Circuit Court, and need state but one ground of my dissent.
The plaintiff is entitled to recover, notwithstanding the negligence of deceased, if the defendant became aware of the danger of deceased, and failed to use ordinary care to avoid injuring him. Shearman & Bedfield on Negligence, §§ 25-26, 33; Sanders on Negligence, pp. 55-6. The rule is demanded by humanity as well as sound reason. In my opinion the record shows such facts that the court ought to have submitted to the jury the question whether under this rule the plaintiff was excepted from the effect of the doctrine of contributory .negligence, and could have recovered, notwithstanding the deceased did not exercise care. There was evidence which, in my opinion, tended to show that defendant’s servants knew of the want of care of deceased, and failed to use ordinary care to avoid injuring him. The jury should have been permitted to pass upon this evidence. It is not necessary for me to consider other points in the case as, for the reason assigned, I think the judgment of the Circuit Court is erroneous.