(dissenting.) — I. With the greatest respect for my brethren who have prepared the fore*109going opinion and those who have concurred in it, I have not been able to give my concurrence.
It still seems to me illogical to say that the weight-of judicial authority sustains the position that defendant is not liable for the acts of the engineer because he-was a fellow-servant of plaintiff’s husband, and to permit the case of Rohback v. Railroad, 43 Mo. 192, which in my opinion is in direct conflict with the opinion of the majority in this case, to remain undisturbed. If this case is law, that is not, and it ought to be overruled. But when we confess that it was once the law, and fully sustained by authority, I agree with Judge Macpablane, that it does seem the rule ought to be changed by the legislature, and when we consider that-as a matter of recent history the legislature has refused to make the change it furnishes an additional reason why we ought not.
II. But independently of the question of fellow-servants I have never been able to fully agree to the conclusion reached.
T-he evidence shows that the deceased trackman had worked for many years on the track of defendant. It was shown that the rules.of the company required trackmen at all times to look out for and avoid engines and trains while at work on the track. It was undisputed that he had not yet reached the point where he was to go to work. It was also undisputed that there was ample room for him to walk between the tracks, so that if he was walking on the track, it was wholly uncalled for at the time by the nature of his work. I cannot assent to the proposition which excuses him on the ground that he had a right there. I think he had placed himself in a dangerous place without right or invitation of his master, and ivas a trespasser. Loeffler v. Railroad, 96 Mo. 269.
*110But again the fault in the reasoning to my mind is this: The presumption is invoked that deceased was exercising due care in the face of the patent fact that if he had not been wrongfully and negligently walking on the track, or had not negligently stood too close to an approaching engine, for which he was bound to look ■out, he could not have been hurt. It seems to me it is indulging a presumption against all the admitted facts.
It is admitted no witness saw the train strike •deceased, and it does not appear he was struck while on the track or beside it. The nature of his wounds show he was not mangled and tend very conclusively to show he was not between the rails. Now is there any rule of law that will deny the engineer in charge of the train the presumption that he too was exercising due care in the management of the engine? If there is not, we have one presumption rebutting another, and the burden resting oil plaintiff to show that deceased was •on the track long enough for the engineer to see his peril and to prevent the injury after discovering the peril.
I have been carefully through the record and I •cannot find a word that, would sustain this verdict •outside of the presumption of due care, which I hold is .most clearly negatived by the facts of the case.
The learned counsel for respondent stated in open •court that it was not certain whether deceased was struck by the incoming train from the west or the engine going west. ’ I agree with him that the proof fails to show which train struck him or what he was doing. In other words, to my mind it is purely a matter of conjecture and I do not believe any verdict ought to stand upon mere surmise, and I accordingly dissent. Wintuska’s Adm’r v. Railroad, 20 S. W. Rep. 819; Yarnell v. Railroad, 113 Mo. 570.
Sherwood, J., concurs in this.