(dissenting). — Briefly stated my reasons for dissenting in this case are these: The facts show that the track was practically straight for about thirteen hundred feet; that the engine was backing with the tender piled with coal so that the engineer and fireman could not see the deceased on ’the track; that the deceased walked on the track with his back to the train and never looked behind; that the deceased was in the full possession of all his senses, and. that he lived in the neighborhood and knew that trains were liable to pass along there at almost any time. The train was running about twenty-five miles an hour. The place where the accident occurred belonged to the defendant and was not within the corporate limits of any city or town. The *285train men did not actually see the deceased or know he was on the track until after he was killed, and the deceased did not see the train coming. It is measurably clear that the deceased could have heard the noise made by the running of a train at the rate of twenty-five miles an hour quite as easily and distinctly as the trainmen could have heard the deceased walking along the railroad track, and likewise that the deceased could have seen the train as clearly and as quickly as the trainmen could have seen him.
In my judgment it was negligence for the trainmen to run the engine backwards with the tender so piled with coal as to prevent them from seeing a person on the track, and it was negligence for the deceased to walk along a railroad track without looking back to see if a train was coming. If the trainmen had not been thus-negligent they would have seen the deceased in time to. stop the train before injuring the deceased or to have sounded the whistle often enough to attract his attention and thus cause him to get off of the track, and if the deceased had not been thus negligent he would have seen the train and could and would have avoided the accident by getting off the track, and so would not have been injured even though the defendant was negligent. Thus the defendant was negligent and the deceased was negligent and the mutual negligence of both parties was the concurrent and proximate cause of the accident.
The majority opinion concedes this to be true. There is no element of wantonness in the case. The trainmen did not actually know of the peril of the deceased and did not intentionally run over him, and the deceased did not actually know of his peril and did not intentionally permit himself to be run over. Wantonness means a wrongful act intentionally done, and while both parties were guilty of a wrongful act, neither intended that the injury should be done. *286The majority opinion concedes that there was no wantonness in the case. And this must be so, for the act of the trainmen was no more wanton than the act of the deceased.
The majority opinion however proceeds upon the idea that the act of the defendant was so grossly negligent as to amount to recklessness. Conceding that this is true, the act of the deceased was of the same character, degree and extent as that of the trainmen. So the recklessness of the one was just as great, no more or less, as that of the other, and the recklessness of both combined to produce the result, which would not have happened if only either one of the actors had been reckless and the other had not. The track was straight. Each could have seen the other if they had not been negligent or reckless. Recklessness means doing an act knowing that injury to another is liable to ensue and not caring whether it does ensue or not, but it does not imply or involve actual knowledge that the injury is about to be done to another in time to avoid the doing thereof. If it be granted that the trainmen knew that they were liable to injure persons .on the track by backing the engine so loaded with coal as to prevent their seeing such persons and did so without caring whether they injured such person or not, and were therefore guilty of recklessness, it is also true that the deceased must have known that by walking along a railroad track without looking back for trains which he knew were liable to pass at any time he was therefore just as reckless as the trainmen.
This case is not nearly so strong a case for the plaintiff as the case of Rine v. Railroad, 88 Mo. 392, or Jackson v. Railroad, 151 Mo. 621. Yet in both those cases the plaintiff was held not to be entitled to' recover, while here the majority opinion affirms a recovery by the plaintiff. In the first case above cited the engine was backing and the deceased was *287walking along tbe track with his back to the engine. Each saw the other. The trainmen supposed the deceased would get off of the track and the deceased intended to and attempted to get out of peril and actually stepped off of the main track on wbicb be was walking onto a side track. Tbe deceased did not know tbe engine was going to run onto the switch track, while tbe trainmen did know tbat fact. Yet a judgment for the plaintiff was reversed, and the opinion, written by Black, J., was concurred in by Henry, O. J., and Norton, Ray and Sherwood, JJ. And it was distinctly held that the defendant was only liable if it actually knew of the peril of the deceased in time to avoid tbe injury and did not use ordinary care to prevent tbe accident, and tbat it was not liable if it was simply negligent in not using ordinary care to discover sucb peril. Tbis case is a condemnation of “Thompson’s discovery clause,” and of tbe instruction given for tbe plaintiff in tbis case, and an instruction into wbicb tbe court bad inserted “Thompson’s discovery clause” was expressly declared to be erroneous.
In tbe Jackson case the deceased was rather weak-minded and strayed away from tbe care of bis family and walked along tbe railroad track, in a town, with bis back to tbe approaching train, which was running quite as rapidly as- tbe engine in tbis case, and was run over and killed. The track was straight. Tbe engine was running forward. Tbe trainmen saw tbe deceased but assumed that be would get off of the track. The deceased did not see the train. Yet under these circumstances a judgment for the plaintiff was reversed without remanding the cause, and the opinion, written by Burgess, J., was concurred in by Gantt, P. J., and Sherwood, J.
Let those who can reconcile the opinions in those cases with tbat of tbe majority in tbis case. I confess my inability to do so.
*288The plaintiff in this case relies chiefly upon the case of Chamberlain v. Railroad, 133 Mo. 587, and insists that the judgment must stand unless that case is overruled. On the other hand the defendant strongly relies on the case of Sinclair v. Railroad, 133 Mo. 233, and contends that the judgment must be reversed unless that case is overruled.
In none of its salient features is the Chamberlain case like the case at bar, for in that case both parties, plaintiff and defendant, tried the case upon the theory that “Thompson’s discovery clause” was the true law. There the engine was running forward. The trainmen saw the deceased in time to prevent the accident. The deceased was walking along the track with his back to the coming train, and was not aware of his peril. A recovery by the plaintiff was affirmed by a majority of this court in banc, on the ground that the defendant did not use ordinary care to prevent the accident after it actually saw the peril of the deceased. In the Sinclair case “Thompson’s discovery clause” was not invoked by the plaintiff or the jury instructed on that theory. On the contrary the charge was a failure of the defendant to exercise ordinary care after it actually knew the peril of the deceased. In that case as here, the deceased walked along the track, as was his custom and that of people living in the locality, with his back to the approaching train and did not look behind him for the coming train, but was apparently oblivious of the conditions and passing events. The case turned upon the question of whether the trainmen used ordinary care to avoid the accident after they actually knew of the peril of the deceased, and the facts showing that they did so, the judgment for the plaintiff was reversed by this court. The principles herein set forth were not in terms presented in that case and hence were not expressly decided, but the relative duties of the railroad and persons using its tracks *289were so- fully and clearly stated in that case by the learned and lamented Judge Macearlane, that what was said is extremely apposite to this case and is so refreshingly wholesome reading that I adopt them and set them out again in full. That distinguished jurist said:
“I. That deceased had negligently placed himself in a position of danger is not controverted by plaintiff. Ordinarily such contributory negligence would bar a recovery. But there is a well-recognized exception to the rule. The employees of a railroad corporation, in charge of a train, owe, even to a trespasser, the duty of care to avoid injuring him. [Fiedler v. Railroad, 107 Mo. 647.] The ground of this action is a neglect to perform that duty. Under the cause of action stated in the petition the original negligence of deceased in walking upon the track is impliedly admitted. His negligence in that particular is not, therefore, an issue in the case as made by the pleadings. The right of recovery depends upon the conduct of the parties in the situation they occupied immediately preceding the collision. The question involved requires a determination of the respective duties of the engineer and deceased in the circumstances in which they were situated, and whether those duties were discharged.
“To determine these the situation and surroundings must be considered. The day was mild, for the season, and there was but a slight breeze in the air. The train was running through a farm on a slightly ascending grade.' There was neither noise nor objects to distract or attract the attention of either the engineer or deceased, except the noise of the train and the ringing of the engine bell. The train was equipped with all modern improvements intended for controlling it. The engineer had twenty years’ experience, and was presumably skilled.
*290“The petition charges that the engineer was negligent, after seeing the dangerous position in which plaintiff’s husband was situated, in failing to give a danger signal of the approach of the train. What was the duty of the engineer in respect to giving deceased warning, and when did that duty arise?
“It may be safely said as a general rule that the duty of care arises in all cases as soon as the perilous situation of the trespasser is discovered.
“The instinct of self-preservation, as well as common judgment, impels one on a railroad track to leave it on the approach of a train. This law of nature is xxniversal with intelligent beings. Erom this universal law is evolved the legal principle that persons in charge of a train have the X’ight to presume that one walking upon the track will leave it in order to allow a train to pass if they have knowledge of its approach.
“Under the circumstances in which these parties were placed the immediate duty required of the engineer, when he saw that deceased was unaware of his peril, was to give a proper warning. This duty required such a signal as could have been heard and could not have been misunderstood; such an one as would arouse deceased from his apparent mental abstraction or indifference to a sense of his danger, and the necessity of action on his part to avoid it.,
“That such a signal was given is not denied, and is established by the evidence of many witnesses and is disputed by none. It xvas also the usual danger signal. It was heard’ all over the immediate neighborhood. One witness, called by plaintiff, who was some distance from the place of the accident, described it as a sharp whistle, such as is given for stock on the track, and that it could have been heard two or three miles. The engineer can not be'charged with negli*291gence as to giving a signal, nor as to its character and sufficiency.
“II. The next inquiry is whether the notice was timely. The engineer testified that he first saw deceased when about four hundred feet from him, and immediately gave the danger signal. If his testimony is true then the charge of negligence in respect to giving the signal is met and refuted. There was no direct evidence that the engineer saw deceased sooner, nor is there a charge of negligence in failing to see. But the evidence shows that deceased was in full view of the engineer for about one-eighth of a mile, and from that circumstance, coupled with the duties of the engineer to his employer to.keep a watch upon the track, a jury might infer that deceased was seen for more than four hundred feet. [Riñe v. Railroad, 100 Mo. 235.] Assuming, then, that the engineer saw deceased as soon as he came in sight, when did his duty of care begin ?
“Deceased was bound to know, and, in this cáse did in fact know, that a train was due behind him. It was his duty to keep a vigilant watch for it. Indeed, that duty is imposed upon all who go upon a railroad track. The engineer had the right to suppose, when he first saw him, that he would hear or see the train and leave the track.
“It was recently said by this court: ‘Defendant, of course, had the right of way, and was not bound to anticipate that persons trespassing on the track would not step aside before a coming train.’ [Hyde v. Railroad, 110 Mo. 279.]
“In another case it was said: ‘When plaintiff stepped on the track, it was the engineer’s duty to warn him, and this he did. The engineer had a right to presume that an adult would at once step off the track and avoid danger. He was not required to stop his train until he saw plaintiff was in a position of danger or peril.’ [Reardon v. Railroad, 114 Mo. 405.]
*292“In that ease the court says further: ‘The use of the steam brake immediately upon his entering upon the track would unquestionably have stopped the train, but whether it would after plaintiff had fallen and it became evident he was in peril, was, at least, a debatable question.’
“Erom these cases, and many others that might be cited, it seems to be well settled that where no conditions intervene to confuse, or to prevent hearing a signal, and knowing its object, it will be sufficient if given in time for the trespasser to leave the track safely.
“The question then is, was the signal given in time to have allowed deceased opportunity to escape the danger. The engineer testified that the danger signal was sounded when the engine was about four hundred feet from deceased. Other evidence made the distance three hundred and forty feet. These are the maximum and minimum estimates. If the train was running twenty-five miles per hour, which was the estimated rate, it covered about thirty-six feet every second, or three hundred and sixty feet in ten seconds. If deceased walked at the rate of two and one-half miles per hour he would travel about three feet in a second, and thirty feet in ten seconds. Eive feet would have taken him out of danger.
“McDowell, a witness for plaintiff, testified that while working about his barn he heard the whistle and thinking some of his stock was in danger he stepped around to a point from which he could see the train and deceased. It required about three steps in order to get the view. Pie saw deceased walking down the track as though he did not know the train was following. After he got in sight the engine whistled two more times, the last of which was just as deceased was struck. After he came in sight of deceased he took three or four steps before he was struck. Even according to the *293evidence of this witness deceased must have walked fifteen or twenty féet after the danger signal was given. He had therefore ample time to have escaped the danger after the signal.
“The engineer was not, therefore, negligent in respect to his first duty on ascertaining that deceased was not aware of the approach of the train.
“III. The petition charges further that the engineer negligently failed and' neglected to use the air-brakes and other appliances ready and at hand for stopping the train. In other words, the charge is that the engineer was negligent in not stopping the train in time to avoid striking deceased. This duty-of the engineer arose as soon as he knew, or by proper care ought to have known, that deceased did not regard the warning signal. The engineer on this ■question testified that after giving the signal, and observing that deceased did not heed it, he immediately put on the full force of the air brakes, reversed his engine, and did everything in his power to arrest the speed of the train and stop it, continuing, at the same time, to sound the alarm whistle. His evidence receives some corroboration from the trainmen and some other witnesses. There was no direct contradictory evidence. One of plaintiff’s witnesses who had been a locomotive engineer testified that the engine was reversed between the first and second whistles, and the air-brakes were on when the train stopped, but he did not know when the air was applied.
“The evidence tended to prove, though conflicting on the question, that the engine ran five hundred and sixty feet after deceased was struck. The evidence also tended to prove that the train could have been stopped in six or seven hundred feet. Erom these facts the further fact that everything was not done that could have been done to stop the train, might be *294inferred. But that is not the question. The question is whether the train could have been stopped in time to have avoided the calamity. If it could not and the collision was inevitable, unless deceased acted, then, though the engineer was negligent, it could not be attributed to defendant as the proximate cause of the disaster.
“When such dire results occur in so brief a period of time, it is difficult to measure accurately either time or distance. Suppose the engineer was.three hundred and fifty feet from deceased when his duty to warn him arose, and the train was running twenty-five miles per hour, or say thirty-five feet per second. The engineer sounded the whistle and observed its effect. Say that occupied only three seconds, it could scarcely have been less. The train had then run one hundred and five feet nearer to deceased. Take two seconds more for applying the brakes and reversing the engine and the train moved seventy feet farther, before its motion could have been retarded. The engine was then within one hundred and seventy-five feet of deceased. Suppose it ran five hundred and sixty feet after it struck deceased, the stop would have been made in seven hundred and thirty-five feet. It is perfectly clear that the life of plaintiff’s husband could not have been saved by anything the engineer could possibly have done toward stopping the train; for at most he had only four hundred feet in which to do it. We must, therefore, conclude that no negligence on the part of defendant was shown.
“IV. This conclusion obviated the necessity of considering the contributory negligence of deceased after the signal was given. It was certainly his duty to leave the track immediately on hearing the signal, and not to depend upon the engineer to stop the train. If by reason of a neglect of that duty he was caught on the track his contributory neg*295ligence would defeat his recovery though the engineer was also guilty of negligence in not stopping in time to avoid the collision. The character of the signal was such that in the quietness of that afternoon, and the surroundings, we can but conclude that it was heard. The evidence also shows that deceased was struck within thirty-five feet of the point at which he would have left the track. It shows further that after the signal was given deceased changed his course from the center of the track in a diagonal direction toward the left rail, and when struck was oritside of the rail. These facts show conclusively that the signal was heard by deceased. His subsequent conduct indicates that he miscalculated the distance it was from him, and thought he had time to reach the footpath by which he intended to leave the track, or that he had time to walk off deliberately. One or the other of these conclusions must be drawn. In either case there would be contributory negligence.
“We are of the opinion that the evidence shows no liability, and the judgment is reversed. All concur.”
This opinion was concurred in by Brace, P. J., and Barclay and Robinson, JL - ^When the Chamberlain case was decided in Banc, the Sinclair case was considered, and was followed and approved by the whole court. The majority of the court held that the insertion of “Thompson’s discovery clause” in the instruction was not prejudicial error under the facts in that case, because the evidence clearly showed that the trainmen did not exercise ordinary care to warn the deceased of his peril .after they actually saw it and further saw that he was unaware of his peril, and therefore a recovery by the plaintiff was affirmed by this court.
But neither of these cases supports the doctrine of “Thompson’s discovery clause.” In neither case was that *296doctrine approved. It was not present in the Sinclair case, and in the Chamberlain case the logic of the opinion of the Court in Banc, is a condemnation of that doctrine and an admission that it is not the true law. In my judgment both of these cases can stand together, but in so far as they apply to this case, - they are sufficient authority • for holding that the judgment in this case should be reversed, and by clear intendment are a renunciation and condemnation of the underlying want of reason and utter lack of mutuality of obligation and duty' resting upon the respective parties, the railroad men and the person walking upon the track, which is expressed in “Thompson’s discovery clause.”
• Eor the foregoing reasons I am of opinion that the demurrer to the evidence should have been sustained, and therefore think the judgment should be reversed.
n.
The instruction given for the plaintiff told the jury that if they found the defendant was negligent and also found that the deceased was negligent, still they should find for the plaintiff if they believed and found from the evidence that the defendant knew of the peril of the deceased, or by the exercise of ordinary care could have discovered his peril, in time to prevent the injury and did not do so, unless they further believed and found from the evidence that the deceased knew of his peril in time to avoid the injury and did not do so.
This instruction is wrong for these reasons: First, because it authorizes a verdict for the plaintiff, unless both the trainmen and the deceased were wanton, when even the majority opinion holds that there is no element of wantonness in the case; second, because by employing the italicized *297words, “or by the exercise of ordinary care could have discovered his peri],” in defining the defendant’s liability, it mixes simple negligence with wantonness and metes out the same punishment to the defendant whether it was wanton or simply negligent, whereas in defining the liability of the deceased it limits his duty to wantonness and entirely omits the element of his negligence, in that, while it says the plaintiff can not recover if the deceased knew his peril in time to avoid the injury it does not prohibit a recovery if fhe deceased “by the exercise of ordinary care could have discovered his peril” in time to avoid the injury.
The same reason, logic and law which would mix the negligence and wantonness of the defendant, should also inix the negligence and wantonness of the deceased. In my judgment it is error to mix the two as to either the defendant or the deceased, but if it is mixed as to one it should, in common justice, be mixed as to the other also. This is what Beach on Contributory Negligence (3 Ed.), sec. 54, designated, “Thompson’s discovery clause.”
The failure to exercise ordinary care to discover the peril of a person on a railroad track is simply negligence, and the failure of such a person to exercise ordinary care to discover his peril is contributory negligence, and a recovery by plaintiff under such circumstances is as much against the fundamental principles of law as if the negligence and contributory negligence had appeared upon the first analysis of the case instead of after the case had been reduced, by stages of reasoning or occurrence of events, to its last or ultimate analysis.
If this is not true, then some court or law-writer or logician should tell why it is not true. No one has attempted to do so. The majority opinion in this case passes it over in silence. It is as certainly true as a demonstration in algebra, that an instruction such as the one under consideration is *298equivalent to a peremptory instruction to the jury to find for the plaintiff. Eor it is conceded that the defendant was negligent and that the plaintiff was guilty of contributory negligence. It is also conceded that neither party was guilty of wantonness, or if they were, both were equally so guilty. Thus far the plaintiff’s attorney could - concede everything that the defendant’s attorney was at liberty to urge upon the consideration of the jury. But the plaintiff’s attorney could and would say to the jury that the plaintiff was still entitled to a verdict because the court had instructed them that if by the exercise of ordinary care the defendant could have discovered the peril of the deceased in time to have avoided the injury and did not do so, the plaintiff was entitled to a verdict, and as the track was straight for about thirteen hundred feet the trainmen could, and if they had exercised ordinary care would, have seen the deceased on the track, and could have seen that he was heedless of the approach of the train, and hence could have stopped the train in time to have avoided the injury, or, as the majority opinion puts it, could have sounded the alarm whistle often enough to bring the deceased to a realization of his peril in time to have avoided the accident.
There is no reply the defendant could make to such an argument, except that by the exercise of ordinary care the deceased could have discovered his peril in time to avoid the accident and did not do so, and such reply was not available to the defendant because the instruction imposed no such duty upon the deceased, but on the contrary limited his obligation to getting off the track if he knew his peril. The result is, such an instruction is just as advantageous and satisfactory to a plaintiff’s attorney in cases like this as a peremptory instruction for the plaintiff would be, and it might just as well be understood now as at any time, whether this *299court intends to approve sucb a practice. The majority opinion gives effect to it without so expressly committing the court to the doctrine. I can not agree to it even by implication or permit it to pass in silence.
Eor these reasons I am constrained to dissent from the majority opinion.
Sherwood, J., concurs herein.