Dissenting. — Called upon as one of the judges of this court to say whether I concur in the foregoing opinion, I say I dissent, and I say so for these reasons:
I. There is not a scintilla of testimony that the conductor lenew that plaintiff was in the act of alighting when he gane the signal for the train to start.
The tendency of the testimony, and its only tendency, is to show that the conductor had every reason to believe that the plaintiff, seen by him on the steps of the rear passenger car, and in the apparent act of alighting on the platform, had stepped down from the car, before he gave the starting signal. The conductor was in the baggage car when the train stopped; he stepped out of the side door of the baggage car, and as he did so, looking southwardly, he saw plaintiff on the steps, etc., and then the conductor, being on the depot platform, walked four or five steps or more across that platform to the corner of the depot building, then turned around, facing the train and looking northward toward the engine, called out, “all aboard,” and raised his hand, gave the signal to the fireman for starting, then walked back across the depot platform to the baggage car from which he had come, mounted into it, and after he did so, the train, which had stopped its usual length of. time, started; and after the train had moved some sixty feet it was stopped by the ringing of the bell.
The testimony of the conductor is supported by that of the station agent Hannon, who testified that the *435train stopped the usual time; who, hearing the train approaching, took the United States mail sack in one hand, and some company mail in the other, and when the train stopped, came out of the depot door just as it did so, saw plaintiff on car platform in front of him; -walked diagonally across station platform in a northeast direction, twenty-five or thirty feet, to the door of the baggage and mail car, exchanged mail with the United States mail agent and baggage man, turned and walked back to door of depot; turned around before going in, saw plaintiff coming down the car steps, the car standing still, with his attention divided between what he xvas doing and the car window; and when the car commenced to move, noticing plaintiff was inattentive and was about alighting on his right foot, and, knowing this would be dangerous, called out to him, “look out, or you will fall,” when plaintiff, who was facing westward, the car moving northward, touched, or appeared to touch, the platform with his right foot and fell forward with the train, and that if he had been paying attention to what he was doing he need not have fallen at all. Ilarmon, also, corroborates the testimony of Heaton, the conductor, as to the latter getting off the train after it stopped, walking across the depot platform to the corner of depot, turning, calling “all aboard,” and giving the signal for starting the train. The testimony of Harmon is supported by that of plaintiff himself, who says that, as he was coming down the steps of the car, he saw Harmon, the station agent, standing near the door of the waiting room facing him; that Harmon called out, as he was on the bottom step in the act of stepping off, “look out, or you will fall/” that he does not know on which foot he tried to alight. Bryant, also, fully corroborates the conductor’s testimony. And the plaintiff, when on the stand, testified that he did not blame the conductor for being hurt; that he had testified on a former trial that he told Clutter and Southerland the *436same thing. Several witnesses testified that plaintiff had made similar statements to them.
The foregoing is substantially a coiTect resume of the evidence on the point of the conductor’s knowledge of the plaintiff’s status at the time he signaled the train to start. If there is in the record before me the slightest trace or indication of such knowledge, a patient reading of the evidence has failed to disclose it. If this be true, then it must follow that the second instruction given on behalf of plaintiff, was fatally erroneous, and that there was no evidence on which plaintiff could base a recovery. In my opinion, the plaintiff’s sworn admission, that the conductor was not to blame, is intrinsically sufficient to send the cause out of court, a& much so as if the plaintiff had in terms admitted that the defendant company was not in fault. If the conductor was not to blame, who was, pray ? This is sufficient to dispose of this cause without more. When it was here before, the evidence was not discussed, so far as we can judge by the report in 75 Mo. 185. But it was-then and there declared ‘ ‘ as the settled law of this state that when the concurring negligence of a plaintiff proximately contributes to produce the injury complained of, there can be no recovery, unless such injury is, also, the direct result of the omission of the defendant, after becoming aware of the danger to which the plaintiff was exposed, to use a proper degree of care to avoid -injuring him.” Applying that principle now, and bearing in mind the evidence, what becomes of plaintiff’s case?
II. I have not the time to discuss the instructions in detail. Of those for the plaintiff, the first one will be found, on examination, to violate the rule so frequently and so recently announced by this court, that hypothetical instructions, which authorize a recovery, must set forth all the facts authorizing such recovery. Sullivan v. Ry., Oct. Term, 1885, and cases cited.
III. If it be said of the evidence in this cause that *437it is the same, substantially, as before, and that this court, by failing to discuss it, has tacitly sanctioned its sufficiency, I have this to say, that this court, when this cause was here before, seems to have contented itself with pointing out several errors in the instructions, and then, after announcing the controlling principle of law in the •case, to have sent it back, possibly for re-trial. Sometimes cases are treated too gingerly, sent back to plague the trial courts, and then to return to us, when, if the evidence were carefully examined, it would have ■been found that plaintiff’s own evidence gave him no standing in court. Rut, granting that this court com mitted error in failing to discuss the evidence when the cause was here before, this should not preclude us from doing so now. Error is not sacred: it has no vested right to existence ; and it becomes us as mm, certainly as judges, whenever error is discovered for the first time, to confess and to forsake it at the earliest opportunity. Prov. xxviii., 13.
A noted example of this kind, in this court, is found In the case of Hamilton v. Marks, 63 Mo. 167, where the trial court having tried the cause on a correct view of the law, this court, in 52 Mo. 78, reversed the judgment •and sent it back for re-trial on an incorre it doctrine, and it was thus re-tried, but on coming back here, the law was correctly declared, just as the circuit court first held, and the judgment was again reversed. And that case by no means stands alone in the judicial annals of this court. And, in my opinion, it makes no matter that the error was •one in páis, instead of one in law. If gross and palpable injustice has been done, such as I think has occurred in this case, it should be corrected, and it will be a reproach on the administration of justice if it be not done.
Let me mention another case where this court, being •apprised thereof, has confessed and forsaken its error; •error committed arid error forsaken in the same cause. *438Take the case of Bell v. Ry. Co., 72 Mo. 50. A boy was standing on the railroad track in broad daylight, and while standing there was ran over and killed by a passing train of cars ; the evidence was discussed and so were the instructions, but the evidence was not declared insufficient ; several of the instructions were declared improper, and the judgment was reversed and the cause remanded, presumably for a new trial, as no hint or intimation was given contrawise. Well, the cause was re-tried on the theory of the law, as laid down'by this court, and the plaintiff again recovered, and the defendant came here again on appeal; the evidence all one as before; the cause was re-argued, Ray, J., wrote the opinion of the court, affirming the judgment; a motion for re-hearing was filed on the ground that there was no-evidence to support the verdict. What did this court do Did it continue to wallow in the slough of flagrant misapprehension into which it had fallen % Nay, verily. It granted the motion; it re-heard the cause; it reversed the judgment on the sole ground that there was no evidence, whereon to build the verdict. Norton, J., concurring, post, p. —. Why not take the same course now %
But in this case it is said that, “the point then made* that there was no evidence upon which to submit the case to the jury was not sustained,” etc. In Bell’s case, such a point was not taken until the cause was argued here the second time. Is it right to punish the vigilant and reward the negligent ? Queer law and justice that.
IY. The judgment should be reversed because of the admission of testimony of witnesses, non-expert, that the train did not stop long-enough for any one to get , off with safety. This was incontestably erroneous; a mere guess at best, and usurped the province of the triers of the facts. This point was not passed upon when the cause was here before, and the same observation applies to some other points I have touched upon.
Y. The judgment should be reversed because of the *439remarks made by counsel in reference to the absent witness, Wallbridge. The application for a continuance was in full and regular form, and authorized a continuance, which would have been granted, had not the counsel for plaintiff, under the provisions of section 3596, Revised Statutes, admitted that the witness, if present would swear as in the affidavit set forth. This admission was made, and that portion of the affidavit which related to Wallbridge’s evidence was read on the trial, which was all of the affidavit that could be read; but plaintiff’s counsel, against the earnest protest of counsel for defendant, was permitted to make the remarks already set forth in the opinion of the court. For similar remarks the judgment in a criminal cause was recently reversed in. this court. State v. Barham, 82 Mo. 67, Norton, J., delivering the opinion. I can discover no reason why the same principle does not apply in a civil cause in similar circumstances. The statutory provisions referred to, are, at best, but a beggarly substitute for oral testimony, granting that the statute is constitutional. But, certainly, the diminished and feeble force of such statutory evidence should not be allowed to be still further weakened by remarks of counsel, who have solemnly agreed that the facts so stated shall be read in evidence : and who then is allowed, without rebuke, to attack the very paper, but for the admission of whose recitals the cause would have been continued. I will not sanction, by my concurrence, such a travesty of judicial proceedings.
VI. The judgment should be reversed because counsel were permitted to palpably and grossly mis-state the facts in evidence. The views of this court in the State v. Emory, 79 Mo. 461, as to all proper invective that can be indulged in by counsel in the course of argument, I regard entirely correct, but counsel must not go further than this; must not travel entirely out of the record, and appeal to the prejudices and passions of the jury by invective, based upon simulated facts; and do this, *440too, without even the semblance of the mildest form of rebuke from the trial court. Counsel for defendant cites authorities for this position, but the principle is too plain to require a precedent.
For these reasons, I am for reversing the iudgment.