DISSENTING OPINION.
Folkes, J.Concerning the main point of decision, I regret my inability to concur either with the reasoning or the conclusion as announced. The *681holding places a strictness of construction upon our statute, which, to my mind, is wholly foreign from the legislative intention, and one extremely burdensome upon commerce and travel; for, while the burden is apparently upon the railroads only, it is in fact upon the public, who are directly interested in the speed and economy with which transportation of persons and property can be accomplished.
Under this decision, the railroad companies must apply the brakes and use every possible means, of stopping the train whenever a person is seen on the track. This, too, without regard to the distance, and notwithstanding the person has responded to the alarm-whistle by looking up, or looking back, as the case may be, and otherwise indicated to the engineer in charge, as a reasonable and prudent man, that he has seen and appreciates the danger and will avoid it.
Or, failing to apply the brakes and to attempt to stop the train, the company must respond in substantial damages to the party injured, regardless of his conduct in thus misleading the engineer, and in willfully remaining on the track until too late for any possible precautions, statutory or otherwise, to prevent the injury.
The enforcement of such a rule would often require forty-eight hours for a train to pass from Memphis to Nashville, instead of eight or ten hours. It would render all close connections or through transportation — confessedly of vital impor*682tance to persons and property — well-nigh impossible, as there could be no reasonable certainty of making schedule time if the gross negligence, caprice, or malice of those who are in the habit of making the road-bed a common footpath is to stop or slow up every train.
To me it seems too plain for argument that the Legislature never intended to .place a living, moving, seeing, hearing, human creature of mature years and sound discretion on the same footing with cattle or inanimate objects, or with a person apparently unaware of the approaching train, or incapacitated, by reason of his surroundings or otherwise, from appreciating and guarding against the danger of the situation.
The statute says “person, animal, or other ob-structionUnder well-known canons of construction the “person” within the meaning of the legislators must be, or appear to the lookout to he, an “obstruction” upon the track. It could never have occurred to the Legislature that a living, active, alert adult, who had indicated to a careful and prudent observer by his conduct that he saw and appreciated the danger, and would avail himself of ample time and opportunity afforded by the distance to step safely from the track, would he regarded as an obstruction so as immediately to call for resort to the statutory precautions against accident. This Court has repeatedly held that our statute in question was only declaratory of the common law rule of pru-*683■deuce and care in the exercise of precautionary measures to prevent accidents from the running of trains. Fleming’s case, 14 Lea, 139, and Humphreys’ case, 12 Lea, 200, where it is said these statutes “ embody no more than the common law, or any other enlightened system of jurisprudence, demands at the hands of any citizen. This statute has only shifted the burden of proof.”
And in Pratt’s case, 1 Pickle, 14, Judge Snodgrass, speaking for the present Court, says, after citing Horn v. Railroad, 1 Cold., 75; Railroad Company v. Connor, 9 Heis., 21; and Burke v. Railroad, 7 Heis., 463, concerning the statute in 'question: “It does not create any new form of negligence -which may be distinguished from another by the term ‘statutory,’ or leave out any which" might be classified as common law negligence.”
That the company would not be liable under common law principles in the case at bar, under the case put by the jury in its inquiry of the trial Judge and sustained by the record, there is no one so bold as to affirm, I presume. Schofield v. Railroad, 114 U. S., 615; and Railroad v. Houston, 95 U. S., 697.
That the employes are not bound at common law to stop every time a person is seen ahead on the track who gives evidence of being alert and of having heard aud seen the train, has repeatedly been held by Courts of high authority. Railroad Company v. Stroud (Mississippi), 31 Am. & Eng. *684R. R. Cas., 443; Chrystal v. Railroad Company (New York), 31 Am. & Eng. R. R. Cas., 411;. Nicholls v. Railroad (Kentucky), 34 Am. & Eng,. R. R. Cas., 37; Railroad Company v. Walker (Indiana), 12 Am. & Eng. R. R. Cas., 121; Railroad Company v. Smith (Texas), 19 Am. & Eng. R. R. Cas., 21; Railroad Company v. Mundy (Arkansas), 31 Am. & Eng. R. R. Cas., 424.
The case made in the proof, when taken in connection.with the response of the trial Judge to the inquiry made by the jury while they had the case under advisement, clearly presents the question we have been discussing, and emphasizes the error of the Circuit Judge. It is undisputed that the deceased heard the whistle, and said: “ Come on, old train; I’ll get out of your way.” And some moments later, when the train had gotten within some hundred or two yards of him, again hearing the whistle, he turned and looked to see its distance, and this movement was observed by the engineer.
It will not be out of place to repeat what took place between the Court and jury. Being manifestly of opinion that there should be no recovery against the railroad, and yet embarrassed in reaching what to them appeared a just result under the instructions theretofore given, the jury “returned and asked the Court whether, if they found that the defendant had not strictly complied with all the statutory rules or precautions as given in charge, yet deceased’s own want of care and gross *685neglect was the direct cause of Ms injury and death, they could not yet find for the defendant. To whieh the Court replied that they could not, hut should consider such contributory neglect on the part of the deceased in mitigation of damages; but if they found the railroad company wanting in full performance of statutory duties, plaintiff would be entitled to some damages in any event.”
The opinion of the majority does not attempt to justify the doctrine thus announced by any thing to be found in the common law, but places its affirmance solely upon the statute, as imperatively demanded by the terms thereof and the decisions of this Court thereon.
Row, I most respectfully but earnestly contend that such extreme holding has no warrant in the statute fairly construed, and that it has no decision of this Court directly sustaining it, unless it be the case of Hill v. Railroad Company, 9 Heis., 823, opinion in 1872 by Judge Sneed. While the result in that case may be said to be altogether proper — under the statement of facts given by the learned Judge to the effect that the deceased was drunk, and had given to the railroad operative no evidence of having seen the train, as shown by the language of the Judge in the inquiry, “How could the engineer know that the deceased was not both ■blind and deaf?” and the negligence of the engineer under the circumstances of the case in not ringing the bell until within twenty-five or thirty fegt nor sounding the whistle until within twelve or *686fifteen feet — while the affirmance of the judgment in Hill’s case, we say, was all right, either under or independent of the statute, on account of negligence, it is a matter of common knowledge with the profession that the extreme language of the opinion, has been greatly criticised, and has in numerous cases of later date been departed from. For instance: “ That the statute must be obeyed in its severest literality; that it does not brook the slightest speculation upon things probable or possible, either by the Court or by the company’s agents, but demands an absolute obedience to its provisions, whether they seem necessary or not.” If this is sound, the door is shut in the face of reason. That this Court has, in fact, reasoned about the possibility and probability, and taken hold of this statute and construed it within the light of reason and common sense, just as it does any and all statutes to arrive _ at the legislative intent, is amply shown by repeated decisions which are wholly at variance with the strict construction given in the Hill case. Only a' few of them need be stated. Railroad v. Scales, 2 Lea, 688, where our present learned Chief Justice, commenting upon Railroad v. Thomas, 5 Heis., 860, says of the literal construction insisted on, that it was mere obiter, just as we now say of the language we have quoted from the Hill case; and he reversed the trial Judge for following such a construction, and held the statute did not apply where the appearance was so sudden as to *687prevent compliance. The statute did not make such, exception, hut the Court made it by construction, and Scales’ case was followed on the same line in the Swaney case in 5 Lea, 120. So in Melton v. Railroad, 2 Lea, 262, where the rain so heat upon the head-light as to obscure the vision of the lookout. So the holding ,that the statute does not apply to passengers on the cars (7 Lea, 313); nor to persons traveling parallel with the road (Feathers’ case, 10 Lea, 103); nor to employes about the company’s yards (9 Heis., 270). So the Court has taken the liberty of holding that the word “road” used in the statute means track, and does not apply to persons or animals on the roadway unless on the track or within striking distance of the train.
So also the Courts, holding that contributory negligence must be considered in mitigation of damages, have taken liberties with the literalism of the statute, which says that in case of non-compliance the railroad company shall be responsible for all damages to person or property, occasioned or resulting from any accident or collision that may occur. Likewise in Railroad v. Scott, 3 Pickle, 494, in holding that the precautions need not 'be resorted to in the order named in the statute.
Row, where is the authority for all these holdings to be found, save in the application of the common sense and common law rules of construction? Certainly not in a blind adherence to the literalism of the statute.
*688To my mind, the holding in the case at bar is .-a recurrence to the obiter of the Hill case, and not in harmony with the spirit of the later cases to which I have just referred. Again, I submit it a mistake to suppose that the familiar rule announced of allowing contributory negligence to go in mitigation of damages had its origin in ■cases growing out of the statute in question, and that it was a necessity or an expedient resorted to to give efficacy to the statute which allowed a recovery when the prescribed' precautions had not been complied with, and at the same time prevent .an excessive or a full recovery.
As was said by Judge Cooper, speaking for the Court in Fleming’s case, “the rule is applicable to .all cases of contributory negligence, and is not confined to cases growing out of our statutes regulating the duties of railroad employes on a moving train when an obstruction appears on the track.” It is merely an adoption of the law which prevails in civil actions for assault and battery, where the conduct of the plaintiff in the way of provocation is always admissible in evidence to •mitigate the damages.
•How, what, is the true rule in the character of cases we are considering? I cannot state it better than in the language of this Court in Fleming’s case, 14 Lea, pages 136-139, a part of which I quote: “ In this State we hold that although the injured party may contribute to the injury by his ■own carelessness or wrongful conduct, yet if the *689act of negligence of the party inflicting the injury was the proximate cause of the injury, the latter will be liable in damages, the negligence or wrongful conduct of the person injured being taken into consideration by way of mitigation in estimating damages. In other words, if defendant was guilty of a wrong by which plaintiff is injured, and plaintiff was also in' some degree negligent, or contributed to the injury, it should go in mitigation of damages, but cannot justify or excuse the wrong.” Citing Fain’s case in 12 Lea, 35, and continuing, says: “At the same time we hold that if a party by his own gross negligence brings an injury upon himself, or proximately contribute to slick injury, he cannot recover; neither can he recover in case of mutual negligence where both are equally blamable.”
This Court followed the rule as above stated, announcing in Hall’s case, 4 Pickle, at Knoxville last term, that the negligence of plaintiff which is to be taken in mitigation is such as contributed incidentally, and not as the proximate or immediate cause of the injury, and that where the negligence of the plaintiff was the proximate in the sense of direct cause of the injury there could be no recovery.
How, the case made by request of the jury and instruction of the Court is one where the injury was, in the language of the jury, the direct result of the gross negligence of the plaintiff. In such case my view is that it is a bar to the action, *690and that there is nothing in the statute to make the company liable where it has been guilty of no negligence, common or statutory, and where the injury is the direct result of the plaintiff’s gross negligence, and that there is nothing authoritative in any of our adjudged cases to the contrary. If so, the sooner they be departed from the better.
■In conclusion, I submit that if I be wrong in the views I have above hastily prepared, and we are constrained to hold that the plaintiff, under the statute, should have some recovery, then we should, upon every consideration of public policy, make the recovery merely nominal in a case where confessedly there could be no recovery without the statute.
It will not do to say that in the case at bar the recovery being only for $300, is, for a human life, substantially nominal. Nor the purpose of this one case that may be granted. But we are settling a principle, and that principle is that the jury may fix damages in such cases at such figures as to them may seem right, and allow the direct cause and gross negligence of plaintiff to be considered by them in mitigation. Now, under such a charge, where they have fixed their verdict at $2,500 or more, how is this Court to disturb it? Iiow can the Court say that the jury have not fixed damages at $10,000 and allowed $7,500 in mitigation under the rule which prevents this Court from disturbing the verdict in such cases, except where it is so excessive as to indicate passion or prejudice?
*691With, such a charge stamped by the approval of this Court, I see where it may lead to verdicts that are shocking to every sense of right, and yet be beyond our power to vacate. '
For these reasons, I reluctantly but respectfully dissent from the opinion just announced by the majority of the Court.
It is, perhaps, needless to add that no thoughtful person will suppose, from any thing I have herein said, that railroads are at liberty to run down any trespasser upon their tracks. The dangerous character of the means they employ imposes upon them a very high degree of care in the running of their trains, independent of any statute; and, if experience or observation is worth any thing, the juries of the country may be depended on to hold them to the exercise of proper care and prudence in the effort to prevent injury to persons on the track, hut we submit it should be done always under a proper charge by the Court.