This is an action to recover $5,000 for the death of plaintiff’s husband, Joseph Hinzeman, on the 2nd day of October, 1900, he being defendant’s section foreman, having in charge a section near Kansas City, and killed while in the line of duty. He and *62Ms gang of men were at work reconstructing defend- 1 ant’s roadbed, i. e., removing bad ties and replacing them with sound ones. Hinzeman, it seems, assumed the service of going ahead of his men and marking defective ties with a pick, and was engaged in marking a tie when he was struck and killed by an east-bound locomotive pulling a passenger train and running on schedule time at, say, twenty-five miles an hour in daylight on an unobstructed level track and clear day. He had good eyes, good ears and was a trackman of experience. His widow, Cordelia Ei. Hinzeman, brought suit, and was cast on trial to a jury.
The cause was here once before on defendant’s appeal from an order granting plaintiff a new trial. At that trial, the following instruction was given for defendant :
“Unless the jury believe from the greater weight of the evidence that the defendant’s engineer in charge of the locomotive which struck the deceased, willfully, wantonly or recklessly ran deceased down and killed him, your verdict must be for the defendant.”
The trial court, having reconsidered its action in giving that instruction, sustained plaintiff’s motion for a new trial; and here, on review, that ruling was approved — the case being reported in full, Hinzeman v. Railroad, 182 Mo. 611.
The cause was originally tried in the circuit court of Johnson county, but, when sent below, was removed by change of venue to the circuit court of Henry county and re-tried on January 23, 1905, resulting in a verdict for plaintiff in the sum of $5,000 — defendant again appealing.
The petition was amended at the second trial to show that plaintiff had intermarried with one Mills. As we see it, the former answer was refiled and the former testimony, as preserved in the bill of exceptions, was read to the second jury, supplemented by oral *63testimony tending to impeach the credibility, and disturb the weight due to the testimony, of plaintiff’s witness, Wilson. This case, therefore, having been tried the second time on the same paper issues and substantially on the same evidence, supplemented by oral proof tending to break down plaintiff’s principal witness, it would do no good to restate the facts, provided we remain satisfied they were fully and fairly stated before. We have, accordingly, examined the original opinion and the record, then and now before us, and, as a result, readopt the statement of the case there made, in extenso, by Valliant, J. That opinion must, therefore, be read with this.
Some of the evidence tended, to show Hinzeman had been marking ties as he went east on the track — the train approaching him from behind. Some of it tended to show he was walking east between two railroad tracks with a pick on his shoulder and suddenly veered and approached the rail, bent over it and delivered a blow with his pick upon a tie so immediately before the coming engine that, though seen in peril by the engineer and fireman, it was too late to save his life. All the evidence indicates he was seen by the engineer and fireman for several hundred feet. Defendant’s evidence indicates that, when so seen, he was out of danger and turned from the course he was holding and placed himself in danger when his injury could not be avoided. Plaintiff’s evidence was somewhat the other way. In this condition of things the former opinion laid some stress upon the pick marks on ties west of where Hinzman was killed as indicating his presence on the.track and in danger for some distance, and it is now warmly insisted that these pick marks had been placed on these ties the day before, and that there was no substantial evidence of the marking of these ties by Hinzeman on the day he was killed and, therefore, says appellants’ learned counsel, the opinion is *64in fault in its statement of facts and, hence, the conclusion drawn was erroneous. But we do not find it so. To the contrary, there was evidence sustaining that finding of facts by plain inference. And not only so, but if Wilson’s evidence be true, then Hinzeman was bent over the rail and in danger while the train ran 300 feet. So that, it makes little difference whether he had been on the track marking ties before he marked the fatal one, or not. And it makes little difference whether he had been going outside the track, and from time to time bent over the rail engaged in his labor of marking unsound ties for some distance west on the day he was -killed. Because if he approached the rail for the first time at the moment he was killed and remained in danger there in the performance of his duty, as Wilson says, while the train ran 300 feet, the same conclusion must be arrived at, to-wit, that the engineer who saw him in peril and apparently unconscious of it, should have given timely alarm signals.
Respondent asked but one principal instruction and that was based on the hypothesis that the duty of defendant was to warn him by an alarm whistle. The significance of this will be seen when it is stated there was evidence tending to show the bell had been ringing for a long distance. Appellant now contends it was error for the court to predicate negligence on a failure to blow a whistle under the facts and circumstances surrounding the case. In other words, that the ringing of the bell, if one was rung, came up to high watermark as ordinary care. Of this contention, it may be said that the same instruction was here on the former appeal and came within the reasoning then employed. While it is not set out in full in the former opinion, yet, in discussing one of defendant’s instructions, we said this: “That instruction is also erroneous in this, it seems to limit the duty of the defendant in the emergency named to stopping the train,, and says that if *65when the peril was discovered it was then too late to stop the train the defendant is not liable. That leaves ont of view the duty of sounding the whistle, which under the plain evidence was an obvious duty.” So that, the duty of defendant to sound the whistle, under the facts in judgment, has heretofore been adjudicated. Why should that not be an indicia of ordinary care? The whistle was there, in going order, and could be blown instantly. The blowing of a locomotive whistle is the ordinary and usual means of giving a sharp alarm, the steam was there to blow it, the lever was there to operate it, and the man was there to pull the lever and open the throttle. Is it an unreasonable and unfair requirement, then, as matter of law, if it be held that the whistle should he used if possible, when life is at stake? We think not. The monotonous stroke of a bell may be one thing; the incisive, ear-splitting scream of a whistle, a signal known to man and. beast as performing' the office of an “alarm signal,” is another. Under given circumstances, a bell might suffice —under other circumstances a whistle is ordinary care. [Chamberlain v. Railroad, 133 Mo. l. c. 604; Eppstein v. Railroad, 197 Mo. 720.] Furthermore, defendant asked no instruction based on the ringing of the bell and may not complain of mere non-direction. In Chamberlain v. Railroad, supra, the court approved of an instruction which said, in effect, that the stopping of a train was but ordinary care under given circumstances. If the locomotive bell be ringing and one is in danger, plainly oblivious to that danger (as Hinzeman was), and the inefficiency of the stroke of the bell to alarm him is apparent (as here), why may not the court tell the jury as a matter of law that under such circumstances a failure to use the whistle was negligence?
The learned counsel for appellant doubt the *66soundness of the former opinion in so far as it laid stress on the first questioning remark of Hinzeman on returning to consciousness after he was struck, to-wit, “What hit me?” The office given that remark hy this court was that it was competent and potent as tending to show Hinzeman had no knowledge or notice of the oncoming train. We remain satisfied with the significance we attached to that remark. It was made on the spot and in the presence of the witnesses to the transaction. His mind apparently took up> the thread of his life precisely at the point it was broken when struck by the locomotive and the first instinctive and spontaneous inquiry was, “What hit me?” That meant he did not know. The exclamation was part of the res gestae and, therefore, was properly admitted and is lodged in the case for what it is worth.
In the former case it was persistently urged over and over again, with a wealth of argumentation and citation of authority (contended to be in point), that there was no case to go to the jury. We said then there was a case to go to the jury. Having said so once, should we not say so twice? Having sent this case down to he retried on that theory, it would be palpably unjust to plaintiff to speak with two voices and now say to her, you have no case — unless, indeed, we are constrained to that course from a sense of judicial propriety arising from a re-examination of the record and a doubt of our former comprehension of the facts and application of legal principles. With high confidence it is asserted that we should change our judgment. Accordingly, we have gone over this record to see upon what the confidence of learned counsel is based and we find nothing to disturb our original conclusion. Having been once here on substantially the same facts and the same issues in the same pleadings, the law then declared should be considered (and remain) the law of this case under the doctrine of res adjudicata.
*67The judgment is, accordingly, affirmed.
All concur, except Graves, J., who had been of counsel below.