My concurrence is limited to the result, because of what is said in the principal opinion concerning State ex rel. Fleming v. Bland, 322 Mo. 565, 572, 15 S.W.2d 798, 800. [83] Bearing in mind the respondent's case was submitted solely on the humanitarian doctrine, I think the opinion mingles antecedent negligence with humanitarian negligence. Preceding the discussion of the Fleming case, the statement of facts in the opinion recounts that the locomotive fireman had started to throw coal in the firebox before the deceased Krause reached a position of imminent peril; and was just getting back on his seat in the cab when the casualty occurred. From his position on the "deck" between the locomotive and tender while firing the engine, of course the fireman could not see ahead. Then the opinion mentions that there was another grade crossing ¾ mile east of the one where Krause was struck but none for two miles or more west, in which latter direction the train was going. The implication is that the fireman should have waited until he reached that stretch of track before leaving his seat in the cab and firing the engine. He did that well before Krause got into peril, and thus the foreign element of antecedent negligence is introduced into the case.
That such is the view intended to be expressed, is made clear by what follows. The opinion next cites several cases announcing the well established doctrines: that the engine crew of a train must keep a careful lookout for highway travelers about to cross the track (a breach of which duty generally would be primary negligence); and that the humanitarian doctrine extends todiscoverable as well as discovered peril. Then follows the statement about the Fleming case (parentheses ours): "Under the issues presented (in that case) the court was not ruling on antecedent primary negligence of the nature involved in the instant case (duty to keep a lookout) when it is said that defendant's prior negligence is not to be taken into consideration in determining negligence under the humanitarian doctrine."
It is true the antecedent negligence in the Fleming case was not failure to keep a lookout before the plaintiff got into peril: it was negligent running of a streetcar at a speed in violation of a city ordinance so that the motorman could not stop after the plaintiff's peril arose. The Kansas City Court of Appeals had held the plaintiff could recover under the humanitarian doctrine because the motorman had negligently put it out of his power to heed the precepts of that doctrine, but the Fleming case quashed the opinion for the reason *Page 359 that contributory negligence is a defense to primary negligence, but not to humanitarian negligence; and hence, when primary or antecedent negligence is mingled with humanitarian negligence, and yet the defendant is denied the right to rely on the contributory negligence as a defense, he is deprived of a valuable right. In an effort to dispel the confusion in certain prior decisions the Fleming case held as plainly as words can phrase it (it seems to me) that under the humanitarian doctrine the defendant owes no duty of any kind to the plaintiff until the latter's peril arises. It says (italics ours):
"Many cases decided by this court impliedly hold that a situation of imminent peril is the basic fact of the humanitarian doctrine; that no duty whatever arises under that doctrine, unless and until a situation of peril comes into existence; and that when such peril arises the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise ordinary care in certain respects: to make timely discovery of the peril, if it was his duty to be on the lookout, and thereafter to avoid the infliction of the threatened injury, if he can do so with the means at hand and without jeopardizing the safety of himself and others."
The Fleming case has been followed 21 times to date since it was decided in 1929; and it makes no difference whether the plaintiff's antecedent negligence consisted of a failure to stop, slow up, swerve, warn, keep a lookout, or anything else whatsoever, the rule is the same — necessarily so because of the reason behind it. Among the recent cases holding there is no humanitarian duty to keep a lookout before plaintiff's peril arises, are Buehler v. Festus Mercantile Co., 343 Mo. 139, 159,119 S.W.2d 961, 970, and State ex rel. Snider v. Shain,345 Mo. 950, 954, 137 S.W.2d 527, 529. Both these were banc decisions. In the Buehler case an instruction was condemned which imposed on the defendant a duty to see (or keep a lookout for) the plaintiff approaching a position of imminent peril — i.e.,before he was in peril; in the Snider case the instruction used the expression: "in or immediately coming into a position of peril," and that likewise was held bad. A recent Division 1 case is Reiling v. Russell, 348 Mo. 279, 153 S.W.2d 6, 8(1). In Division 2 are Chastain v. Winton, 347 Mo. 1211,152 S.W.2d 165, 169 [84] (5), and Bebout v. Kurn, 348 Mo. 501,154 S.W.2d 120, 127(14). This last case seems squarely in point. This Division reversed and remanded plaintiff's case for error in an instruction declaring the enginemen were bound to keep a reasonably careful lookout for persons on, near or approaching the track because it was not limited in application to the time after the peril arose.
Nothing here said is to be understood as denying that if the fireman was bound to be on the lookout when the deceased's peril began, then he was chargeable with constructive notice — that is, a duty to make timely discovery of the peril, as the Fleming case says. But if, by *Page 360 being down at the firebox he had put it out of his power to act and warn the engineer as quickly as if he had been up in his seat, that delay caused by his antecedent negligence cannot be counted against him. That was the precise holding in the Fleming case, and in Spoeneman v. Uhri, 332 Mo. 821, 830, 60 S.W.2d 9, 11, where a motorist by driving too fast had put it out of his power to save the plaintiff after the latter's peril arose. With the time element as close as it is in this case, the above factor might make some difference: but the differentiation and limitation of the Fleming case as an authority is the point to which this concurring opinion is addressed.