DISSENTING OPINION.
WOODSON, J.I dissent from what is said in the majority opinion about the so-called humanitarian doctrine, because in my opinion the petition neither states nor attempted to state a cause of action under that rule, as now understood; but for sake of the argument only concede that it does both, nevertheless, T dissent from it, for the reason that it is elementary in this State, at least, that under the common law rule, the plaintiff cannot recover for injuries received where the petition or the evidence shows that he was guilty of contributory negligence which directly contributed to his injury.
And it is equally elementary, that the plaintiff cannot state a cause of action or recover under the humanitarian doctrine without stating and proving that the plaintiff was guilty of negligence which placed him in a perilous position, and that notwithstanding his negligence the defendant saw, or by the exercise of ordinary care on his part could have s'een, his peril in *610time to have averted the injury, but negligently failed to do so, and in consequence thereof, he was injured.
Not only that, but under the so-called humanitarian rule, the instructions to the jury must also be predicated upon the theory that the plaintiff was guilty of negligence which placed him in a perilous position and notwithstanding that fact the defendant saw, or by the exercise of ordinary care could have seen, his peril in time to have prevented the injury, but negligently failed to do so, and that in consequence thereof, he was injured. And if the instructions do not in substance so declare the law of the case to the jury, it is reversible error. This court has uniformly so held; and no case is to be found which does not so declare the law, “no, not one.”
It must therefore be conceded that according to all the authorities the plaintiff under the common law rule cannot recover if he was guilty of contributory negligence, and according to the so-called humane rule the plaintiff cannot recover without he was guilty of negligence as before stated. That being indisputably true, I repeat, as I stated in the case of Nivert v. Railroad, 232 Mo. 626, and in Krehmeyer v. Transit Co., 220 Mo. 639, that those two causes of action cannot be properly united in the same petition, in the same or in separate courts, for the simple reason that they are inconsistent with each other, and both statements cannot be true.
It cannot be truthfully stated in one breath, that the plaintiff was free from negligence under the common law count, and guilty of negligence under the humanitarian count.
I am not unmindful of the fact that this court has repeatedly held that those two statements are not inconsistent and may be united in the same petition, in different, if not in the same count thereof, but that does not change the fact that they are in reality inconsistent with each other, any more than if we should *611liold that black is white or that day is night; the fact would still remain that black is black, and not white, and that day is day and not night. The latter holding would be just as logical and no more fallacious than the former is; and the more often we so hold, the more often we will err.
I respectfully submit that the slugging case suggested by my learned associate in the majority opinion has no element whatever of the humanitarian doctrine in it. [After this case went into the hands of the printer the slugging case referred to was eliminated from the majority opinion, but it cannot be omitted from the dissenting opinion without recasting the whole of it.] Under the facts there supposed, it would be a clear case of liability under the common law rule of negligence, namely, the plain negligence of the engineer, and the want of negligence on the part of the person slugged and injured. The common law rule fully covers that case, and the books are full of such cases, none of them holding, even before the dawn of the so-called humanitarian doctrine, which is still in its swaddling clothes, that one person could lawfully injure another, whenever he discovered him in a place of danger, even though he had no right to be there, and where the former had no right to expect him. Why! Take the burglar for instance, who feloniously enters your house and is discovered; you have no legal right to shoot him down, or wilfully or negligently injure him solely on that account. All the law will justify you in doing is to use sufficient force to protect your life and property, and to remove him from your premises. When you go beyond that, you lay yourself amenable to the law. The same principle is announced in the case of State v. Parker, 96 Mo. 382. There Parker, the wrongdoer, who brought on the difficulty, with no felonious intent however, repented and attempted to withdraw from the combat he had brought on, but being hard pressed by his antagonist it became necessary *612to save his own life, and he shot and killed him. Upon those facts, this court held that Parker was justified in killing Montgomery, his antagonist.
Our learned Commissioner, Mr. Brown, was counsel in that case, and induced this court to hold anew in this State that old and familiar rule of law. That case has been cited with approval, by this court, and by the appelláte courts of other States, as frequently, if not more so, than any other ease which has ever been handed down by this court during its entire existence. This shows that the humanitarian rule has no place whatever in the supposed slugging case. Such a case is governed by the common law.
The consensus of all the authorities is, that the humanitarian or last-chance doctrine has no existence except where the plaintiff is guilty of negligence, and he has thereby placed himself in á . dangerous place; but notwithstanding that fact, if the defendant actually saw, or by the exercise of ordinary care on his part, could have seen him in his perilous position in time to have averted the injury, but negligently failed to do so, then he would be liable under that rule, but not under the common law.
I also dissent from the conclusion reached by the majority opinion, for the reason, first, that the undisputed evidence shows that the plaintiff was guilty of negligence which directly contributed to his injury, which was not neutralized by the humanitarian rule. This is shown by the statement of the case in the majority opinion, namely, that the appellant’s train had been to the depot, discharged its passengers, and was backing out from there empty, across Sixth street, without a rear end pilot, at a rate of speed of about five miles an hour. It must be conceded that such conduct was negligence.
Now as to the conduct of the respondent. He was driving a motor oar, drawing a trailer, loaded with passengers, up Sixth street, at a speed of about three miles *613an hour, and certainly he was in as good a position to view the appellant’s train as was the position of the employees of appellant to view the respondent and his cars. That would have been true, even though the rear end pilot had been at his post of duty, at the time of the collision. Those facts are indisputable.
Now concede that the appellant was guilty of ordinary negligence, and that was all it was guilty of, in baching its train over Sixth street without a pilot, then how stands the case ? The respondent was guilty of negligence in not caring for his own personal safety, the highest of all duties, and that of his passengers, who were in his care and keeping, and to whom he owed the highest degree of care known to the law, outside of self-preservation, to say nothing of the duty he owed to the appellant and its property and employees, which was unquestionably as high in degree as the duty the appellant owed to the" respondent.
If the respondent can recover under those facts, then clearly the common law rule of negligence has been abrogated or suspended by the unauthorized action of this court.
The second reason I have for dissenting from the majority opinion is, that, even under the humane rule, ■ as it is adopted in this State, the evidence does not make out a case for the respondent. The record shows that the appellant’s train was running about twice as fast as was the car of the respondent and that each was equally capable of seeing the other. Under that state of facts, it does not arise to the dignity of sound reason, to say that the humanitarian doctrine applies, for the simple reason that, if the appellant could have seen the respondent in time to have averted the injury, it is also equally true that the respondent could have seen the appellant just as quickly; also if the appellant could have stopped the train, which weighed hundreds of tons, going twice as fast as respondent was going, in time to have prevented the injury, then *614it is equally true, that the respondent could have stopped his cars, within the same time. Yet it is seriously contended that the respondent is entitled to a recovery.
Suppose under these same facts, with the added one that the rear end pilot had been at his post of duty at the time of the collision, and suppose he, instead of the respondent, had been struck and injured by the motor car, would he not, for stronger reasons than those advanced in favor of respondent, have been entitled to recover in this action? The mere asking of this question answers it in the affirmative.
Then by what manner of reasoning can it be logically contended that the respondent is entitled to a recovery in this case, under any rule of law?
It is not an answer to the foregoing observations to say that common law neglig'ence and negligence under the humanitarian rule are both negligence, and for that reason both may be stated in the same count of the petition, any more than it is to say that a promissory note and a. contract to purchase a hundred bushels of corn, are both contracts, and for that reason they may both be stated in the same count.
Both arguments are obviously fallacious, and neither can be sustained upon good rules of pleading.
I concede that the two classes of negligence mentioned, were it not for the fact that they are inconsistent with each other, might be properly joined in the same petition, but would have to be stated in separate counts, just as the note and the contract for the purchase of corn might be sued upon in the same petition, but clearly each cause would have to be stated in separate counts. I am, therefore, of the opinion that the judgment should be reversed, without remanding the cause.