ON REHEARING IN BANC.
Barclay, J.This cause has been thoroughly reargued before the court in banc, and the conclusion we have reached will be announced in a few words.
Defendant’s chief point now is that the case should not have been submitted to the jury, the plaintiff’s conduct being claimed as negligent as a matter of law.
A majority of the court in banc adhere to the conclusion reached and the views expressed in the opinion of division number 1 on this point. To what was then said we may add that the testimony of defendant’s engineer (in charge of the locomotive that struck plaintiff’s buggy) appears to corroborate plaintiff’s witnesses in their statement of the difficulty of observing a coming train from plaintiff’s position.
The engineer said: “When we got almost to the road crossing, I saw a team coming right on the rails, the horses’ forefeet just inside the north rail. The horses shied off to one side. I saw a man stick his head out of the buggy, look up, and then struck his horses with the lines, or may be a whip. The engine caught the buggy. When I first saw them we were about thirty feet from crossing, and were running about twenty-five miles per hour.” And, on cross-examination, he added: “I was looking forward, out of my cab window, on the *290north side of engine, when I first saw Kenney. This is my side of the engine cab. The window in front of me is on the right-hand side of the boiler, and I looked through it. The first I saw he was coming on the track. I immediately shut my engine off and called for brakes, and we stopped about forty or fifty carlengths west of the crossing.”
Prom this statement of the engineer, whose position in the cab placed him considerably above the level of plaintiff ’ s buggy, it is evident that the surroundings of the point of crossing are very unfavorable to a view of the track or of the highway from each other. If the engineer, on the lookout, could not observe plaintiff’s buggy till the engine was within thirty feet of the crossing, it is a mere matter of easy calculation to show that plaintiff’s team must then have been within seven or eight feet of the rails. He was moving at four or five miles an hour. At the higher rate, he would cover a little less than seven and one-half feet each second, while the engine (at the rate of twenty-five miles an hour) would pass over the thirty intervening feet in five-sixths of a second. So, when first seen by the engineer, plaintiff’s team must have been just clearing the cut referred to particularly by the plaintiff’s witness, who said that “he would not get clear of the obstruction made by the cut until within six or eight feet of the railroad crossing.”
The engineer was at his post, on the side of the cab from which plaintiff was approaching, and, if he could not see the buggy until five-sixths of a second before reaching the point of crossing, it is measurably clear that the man in the buggy could not have seen the engine much sooner. We mention the above, with the facts previously stated, merely to furnish another view of this crossing, whose peculiarities have an important bearing on the merits of the case. We are of opinion that the question of plaintiff’s alleged contributory negligence, in view of all the surroundings, was fairly one of fact *291for the jury, and that the trial court did not err in submitting it, as such, to them.
II. Defendant next contends that, as the negligence charged is predicated on a breach of the duty imposed by section 2608 (R. S. 1889), which declares a liability “ for all damages which any person may hereafter sustain at such crossing, when such bell shall not be rung or such whistle sounded, as required by this section,’’ there should be no recovery of the $5,000 (mentioned in section 4425) for the death of plaintiff ’ s wife ; and that plaintiff ’ s damages in such case should be compensatory only.
The answer to this contention is that section 4425 is especially intended to reach cases where death ensues by reason of the facts therein described, and, among them, cases where such death is caused by any sort of negligence whilst running any locomotive or train of cars.
Negligence, under that section, may consist either in a violation of some duty imposed by the general municipal law of the land, or of some duty imposed by some more definite enactment (for example, by section 2608). The term “damages,” in section 2608, includes damages accruing under section 4425 (R. S. 1889) where death results, in the circumstances described in the latter, from negligence consisting of the failure to give the signals mentioned in the former.
This was expressly ruled by this court in the very recent case of Crumpley v. Railroad (1889), 98 Mo. 34. We, therefore, do not now consider it necessary to do more than restate the conclusion then announced on this point.
III. Regarding the rulings upon the instructions and other details of exception at the trial, we coincide with the former opinion delivered in this cause, and agree to overrule the motion for rehearing and to affirm the judgment.
All concur, except Sherwood, C. J., who dissents.