(dissenting). — I. In my opinion the judgment should he affirmed. The sufficiency of the petition is not challenged in the very able and elaborate brief filed for the defendant. Although containing eighty printed pages the very able and astute counsel for defendant does not make the point that a cause of action is not stated in the petition, and in my opinion he would not have been justified in so doing.
The petition shows that plaintiff was a passenger on defendant’s train at the time of his injuries. From that relation the law cast upon defendant the duty of exercising the utmost care that a very prudent person would have exercised under the same circumstances in providing careful and prudent servants to manage its train. The petition further charges that in the car in which plaintiff was riding was a brakeman whose duty it was to act as porter, in the passenger and caboose cars, call the stations, assist passengers on and off the cars, and give them information and assistance and look after their safety and comfort.
I entertain no doubt whatever of the correctness of the legal proposition .that the act of the servant to bind his employer must be in the line of his duty to his master. But if a petition states the relation from which the duty necessarily flows I think it is sufficient without further formal averment. .
From the averments, then, of this petition it appears that defendant had placed a brakeman in its cupola or lookout in the caboose in which plaintiff was a passenger; that the brake rod extended up into this cupola and that it was the duty of the brakeman to work this brake and call stations and otherwise look after the safety of the passengers. The petition then *649avers the fact that this train was preceded by another train only a short distance and was followed by another. It avers that when about three miles from Butler, this brakeman was in this cupola and the engineer gave the signal for “down brakes;” that thereupon said brakeman instantly, excitedly, negligently and recklessly called out “Jump!” or “Jump for your lives!” and plaintiff, knowing of the train just in front and another just in the rear, started to get off of the train by the rear platform and, not being able to turn to the steps, jumped and fell to the ground and was injured.
What then is the case made on paper! A passenger is in a car in sight of a part of the necessary appliances with which the train is operated. He sees the brakeman in charge thereof in the lookout, from which it is his duty to observe and obey signals for stopping or slowing that train. A signal is given for brakes to stop the train. There is nothing in the signal itself to excite fear or apprehension of danger, but suddenly this servant, upon whose conduct, in part, the safety of the train must depend, instantly, excitedly and recklessly called out in the hearing of this passenger, “Jump!” “Jump for your lives!” If there was an impending collision ahead with the forward train, and from his vantage ground he could see the danger, will anyone contend it was not his duty to warn the passengers, if thereby the danger might be averted! We think most clearly the duty would be an incident of his employment. On the other hand if, in fact, there was no danger, and his position certainly enabled him to see whether there was or was not, was it not negligence for which his employer must be held liable for him to so act and so conduct himself as to needlessly alarm those passengers who had not the equal opportunity of judging whether there was danger, and can his employer now be heard to say it is not liable, *650•when by its own servant’s conduct a passenger was induced to jump from the train in the effort to save his life? I think the very manner of performing his duty was negligent, and his master must respond for it. I do not think it is necessary to cite authority. I think the principles are settled, and I differ from my brother only in their application.
II. The evidence of plaintiff and his witnesses fully sustained the petition. It is true there was a conflict between defendant’s witnesses and plaintiff’s on this point, but that was a question of fact and veracity which was properly left to the jury, and there was no such failure of evidence as would have justified the circuit court it taking the case from the jury upon the demurrer to the evidence.
III. Nor can I concur in the view that, although Lamb, the brakeman, had authority to make the exclamation, “Jump for your lives!” and that it was uttered in the line of his duty, in the course and furtherance of his master’s business, still no liability would attach to his employer, because there was no real danger. The plaintiff was in the caboose, the rear car of the train, and his conduct must be measured by his opportunity to see and judge whether there was imminent danger. That he could not, from the interior of this caboose, see ahead, and know what the brakeman in the cupola, or the engineer who gave the signal, did, is very evident; there was, then, no equality as to their means of knowledge and observation.
Under these circumstances this alarm was given, and in direct and immediate connection with the call for brakes. Now I understand the law of this state to be that if one is placed in a position of peril by the recklessness or negligence of one who owes him the duty of safely carrying him, the propriety of an attempt on his part to escape apprehended danger is not to be *651measured by the judgment and discretion that would be required of him when not dominated by terror of impending danger. The defendant having wrongfully excited his fears can not now be heard to say that plaintiff was guilty of negligence in adopting the dangerous alternative which the defendant’s own servant urged him to take. Siegrist v. Arnot, 86 Mo. 200; Adams v. Railroad, 74 Mo. 554; Kleiber v. Railroad, 107 Mo. 240.
In this last case it was said: “If, without having time to deliberate and act upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true though no injury would have resulted had no attempt to escape been made.” Bischoff v. People’s R’y Co., 121 Mo. 216; Coulter v. Express Co., 56 N. Y. 585.
I think it was a question for a jury to say whether a reasonably prudent man would not have jumped from that train when urged to do so by the servant in charge of the brake, who occupied a position from which he could readily discover danger, when they took into consideration the construction of a caboose, the signal for brakes, and that the urgency of the cry left no time for deliberation. I do not think this court should declare as a matter of law that the plaintiff’s conduct was so unreasonably rash that he can not recover because his fears had been needlessly aroused by defendant’s servant in charge of the appliance for stopping the car. Three out of the four passengers were so alarmed that they jumped. On this point I fully concur in the opinion of the Kansas City court of appeals in Ephland v. Railroad, 57 Mo. App. loc. cit. *652163, an action for injuries to another passenger who jumped from this train when plaintiff did.
IV. I do not think the remarks of the circuit judge were so prejudicial as to constitute error. The court, I think, was moved simply by a desire to ascertain if there was any probability of reaching a verdict. He evinced no desire to force the jury into a verdict, and I think his remarks fall far short of a reproof of the one juror. I do not think his statement calls for a rebuke, much less a reversál.
Judge Burgess concurs in my views except as expressed in paragraph IV; as to that he concurs with Judge Sherwood, holding the conduct of the circuit judge to be error.