BBOWN, J.
Action for damages. Plaintiff bad judgment below for $10,000 and defendant appeals.
By ber petition plaintiff demands judgment for $10,000 against defendant for tbe alleged negligent killing of ber husband, Charles J. Boyd, on July 29, 1905.
Deceased was an employee of defendant, working with an extra gang of track laborers, and at tbe time of bis death was riding on a band-car to bis place of work. This is tbe second appeal in this case. A full copy of plaintiff’s petition will be found in 236 Mo. 64, et seq. It is unnecessary to re-state tbe substance of said petition here.
Defendant pleaded contributory negligence and assumption of risk. It also attacked tbe constitutionality of section 5425, Bevised Statutes 1909, but tbe constitutional issues tendered have been abandoned.
Tbe evidence shows tbe plaintiff’s husband (Charles J. Boyd) was employed by defendant during a period of three weeks prior to July 29, 1905, working just north of tbe town of Liberal, Missouri, in surfacing tbe track of defendant’s road.
He was working under a section foreman by tbe name of Lee Mead. Mead left Liberal on tbe morning. of July 29, 1905, at about tbe hour of seven o’clock, using two band-cars to transfer bis crew of men to a point on defendant’s road some three miles north of Liberal. While tbe band-cars were passing through a cut one and three-fourths miles north of Liberal they were met by one of defendant’s freight trains known as tbe local freight, and plaintiff’s husband was by said train run over and killed.
There was a heavy fog at tbe town of Liberal and along defendant’s road on the morning of July 29, 1905. Two witnesses for plaintiff testified that the aforesaid local freight was due to arrive at Liberal from the north just after seven o’clock. One of them [117]*117gives the time for. the arrival of said train at 7:05 a. m., and another at 7:20 a. m.
All of plaintiff’s witnesses state that a train came through Liberal from the north over defendant’s road between six and seven a. m. on July 29th. Witnesses did not know what train it was, but one of them testified that he suggested to Mead (the foreman) that it was not the local freight, but, inferentially, Mead seems to have thought it was, though he was not sworn as a witness.
Mead did not try to find out what train it was which had passed through just before he and his crew started with their hand-cars. There was no telegraph operator at Liberal station, and it does not appear how Mead could have ascertained the whereabouts of approaching trains had he tried to do so. He simply proceeded with his crew to his work as had been his custom for three weeks. There was evidence to the effect that Mead had not been stopping and listening, or sending a flagman ahead, to discover if there were trains approaching before running his hand-cars through the cut where plaintiff’s husband was killed. Witnesses could not remember of any other morning when there was such a heavy fog as prevailed on the morning of July 29, 1905. The defendant in its answer admits the existence of the heavy fog recited in plaintiff’s petition and testified to by the witnesses. •
All the witnesses agree that the fog was so heavy that they could not see a train more than 150 feet. Boyd (plaintiff’s husband) was riding on the rear end of the front hand-car, and the foreman (Mead) and one Tom Mulligan were on the front of said handcar. When they were approaching the cut where Boyd was killed, Mulligan told the foreman that they ought to have a flagman, that it was a good morning “to get caught.” The foreman made no reply, but proceeded with his hand-cars and men into the cut.
[118]*118Four witnesses testified to the circumstances attending the killing of Boyd. Their evidence is substantially the same, except that some of them were not looking at Boyd'when he got off of the hand-car.
The hand-car was running about eight miles an hour when it came in sight of the freight, which latter was running thirty miles an hour. Neither the section men nor the foreman observed the approaching freight train until it was within 120- feet of the front hand-car. Upon discovering the approaching train one man jumped on the brake of the hand-car, and two jumped off in front, grabbing the front handles of the car and making an effort to pull it off the track before it had fully stopped. They succeeded in getting part of the hand-car off the track when the freight train struck only the handles of the rear end thereof. A witness who was applying the brake on the rear hand-car saw Boyd jump off the rear end of the front car and make an effort to catch the rear handles thereof. He (Boyd) failed to catch the handles of the car and fell upon the track. He made an effort to rise and fell again, at which instant the rear hand-car passed partly over his body, and the oncoming freight train collided with this rear hand-car, knocking Boyd sixty feet down the track, killing him instantly.
One of plaintiff’s witnesses testified that Boyd fell upon his back, and another that he fell face downward. It does not appear whether or not he was injured by the rear hand-car, nor is that material, as the defendant admits in its answer that Boyd was killed by the freight train.
One Harry Cooper testified that he had been a section foreman on defendant’s road for five years and was still working for defendant at the time of the trial. He testified that it was the duty of such foreman, when his men were on the hand-car, to keep a lookout for trains; that defendant’s agent who em[119]*119ployed him (Cooper) directed Mm to “stop at any hazardous place and listen, and, if necessary, to go around the curve and see and satisfy ourselves that there were no trains coming close enough hut what we could come around in safety.” This direction seems not to have been given to' said witness until after the collision which resulted in Boyd’s death. Witness stated that he always considered it his duty in times of fog or when a train was expected, to stop his car and ascertain by listening or sending a flagman ahead whether a train was near before starting through a cut.
Plaintiff’s husband was thirty-nine years of age, in good health, and earning $1.40 a day when killed. He was living with the plaintiff (his wife), by whom he left five small children, one of them being born a few months after his death.
The defendant introduced no evidence and asked no instructions, except a general demurrer at the close of plaintiff’s evidence.
For reversal defendant relies upon the following alleged errors: (1) That the court erred in admitting evidence of the age, condition of health and earning capacity of deceased and the number of his children, and instructing the jury to consider that evidence in making up their verdict. (2) That plaintiff’s petition attempts to state a cause of action under both section 5425 and section 5426, Revised Statutes 1909, and, therefore, plaintiff should have been compelled to elect wMch one of said sections she would rely upon for recovery. That plaintiff’s petition does not state facts sufficient to support a recovery under section 5425, Revised Statutes 1909’ (Death from negligent operation of locomotives, cars, etc.). (3) That it was the duty of plaintiff’s husband as a section hand to look out for defendant’s trains and for his own safety. (4) That there was evidence to sustain defendant’s plea of assumption of risk and contrib[120]*120utory negligence, and that said defenses should not have been ignored in plaintiff’s instructions.
OPINION.
I. Defendant’s first assignment calls for a construction of section 2864, Revised Statutes 1899, as amended by Laws 1905, p. 135, now section 5425, Revised Statutes 1909.
Statute Penal and Compensatory. The court, over defendant’s objection, admitted evidence tending to prove the age, condition of health and earning capacity of' plaintiff’s hus-hand at the time of his death; also evi-denee as to the number of minor children left by said husband. The court also, at the request of plaintiff, gave the following instruction on the measure of damages:
“2. The court instructs the jury that if you find for the plaintiff you shall allow her a sum not less than $2000 and not more than $10,000', in the discretion of the jury, and in determining the amount you will allow her you may take into consideration the pecuniary loss occasioned to the plaintiff by the death of her husband, and you may also take into consideration the facts constituting negligence on the part of the defendant causing the death; and in considering the subject of her pecuniary loss you may consider' what would have been the value of her support from her husband from the time of his death during the time he would probably have lived and supported her, and you may also consider the additional burden, if any falls upon her, for the support of her minor children by reason of his death.”
If, as defendant contends, section 5425 is wholly penal in its nature, then it was error to admit said evidence and give said instruction numbered 2.
Prior to the amendment of 1905 said section 5425, supra, had often been adjudged to be a penal statute. [121]*121It was accordingly held that parents of a minor son whom they had emancipated, and npon whose earnings they had no claim, conld maintain an action against a railroad company for negligently cansing snch minor’s death. [Matlock v. Railroad, 198 Mo. 495; Philpott v. Railroad, 85 Mo. 164.] The amount of recovery under said section was immovably fixed at $5000. and a party entitled to recovery for the death of a husband, wife, child, etc., could not waive a part of the penalty and sue for a less sum than $5000. [Casey v. Transit Co., 205 Mo. 721.]
This court has several times announced the doctrine that said section 5425 possessed compensatory features. [Philpott v. Railroad, 85 Mo. 168; Coover v. Moore & Walker, 31 Mo. 574; King v. Railroad, 98 Mo. 235.] However, the penal nature of the statute as it existed prior to 1905 has been quite uniformly held to overshadow its compensatory features, and the amount of recovery, when a recovery was allowed at all, was fixed at $5000 regardless - of the earning capacity or the age of the party killed.
In 1905, said section was amended by striking out of the same the words: “shall forfeit and pay for every person or'passenger so dying the sum of $5000’'’ and in lieu of the words thus stricken out the following words were inserted: “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury.”
The question is, did this amendment convert said section into a compensatory statute, or leave it wholly penal in its nature as it had theretofore existed?
In the recent case of Young v. Railroad, 227 Mo. 307, the amendment of 1905, heretofore quoted, was, assailed on the ground that it was unconstitutional; and in upholding its constitutionality, Valliant, J., in speaking for Division No. One of this court, stated: [122]*122“The words, ‘as a penalty’ inserted by the amendment add nothing to the meaning or effect of the section; we have always held it a penal statute.”
It was undoubtedly the intent of the General Assembly to continue the section now under consideration as a penal statute in so far as it authorized a recovery of not less than $2000 for the killing of a human being by the means and through the negligence, unskillfulness or criminal intent of the parties or corporations designated in said section 5425, but the more serious issue is what facts are juries allowed to consider in arriving at a verdict in excess of $2000.
It might be urged that they are to consider only circumstances attending the negligence, unskillfulness or criminal intent of the party or corporation causing the death for which recovery is sought, but it would be much more reasonable to suppose it was the legislative intent that, in exercising its discretion as to the amount for which a verdict in excess of $2000 should be rendered, the jury should also consider the necessary injury sustained by the party seeking the recovery.
The insertion of the specific word “penalty” in the amendment of 1905' furnishes some reason for the contention that the recovery was intended to be penal and not in any way remedial or. compensatory in its nature. However, “it is the substance and effect of the statute, rather than its form, that is to be considered in determining whether it is penal.” [36 Cyc. 1183.] Blaekstone says that in amending laws the old law should be first considered; second, the mischief which the old law failed to prevent; and, third, -the remedy necessary to make the old law complete and effective.
If the General Assembly considered this rule in 1905, it found a statute which permitted a recovery of only $5000 by a widow whose husband was killed through the criminal intent of a railroad company or its officers in the operation of its cars or trains. Evi[123]*123dence that the man killed was young and highly skilled in some useful occupation and was earning ten dollars, or even one hundred dollars, per day, could not he received to increase the verdict above $5000. On the other hand, if the man killed through the mere negligence of a railroad company, unaccompanied by any wantonness or criminal intent on its part, and though such party killed was sick or so old that he possessed no earning capacity and was a charge upon his family, the recovery by his wife under the old law could not be less than $5000. The lawmakers are supposed to have known of the highly inequitable results which the old law produced, and in amending that law so that the recovery might be reduced to $2000 or increased to $10,-000, it would most naturally base such sliding scale of recovery upon the age and earning capacity of the party killed.
If they desired to reduce the recovery below $5000 or increase it above that sum solely on account of the mitigating or aggravating circumstances attending the killing, it would have been the most natural course for the lawmakers to have specifically directed that the lower amount of $2000 should be awarded for the death of parties through ordinary acts of negligence, and the larger sum of $10,000 for death caused by acts of gross negligence or criminal conduct. No such guide for the jury is found in the statute as amended.
The language of the amendment authorizing the jury to exercise its discretion in fixing the amount of the verdict, if above the sum of $2000, and the failure to prescribe any rule for the exercise of such discretion, casts a serious doubt upon the meaning of the word “penalty” as used in said section for the first time in said amendment of 1905. It would be absurd to say that the Legislature believed juries so infallible that they could render correct verdicts without a knowledge of the facts upon which their discretion must operate; so we have a right to infer that by the [124]*124use of the broad word “discretion” it was intended that the jury should he fully acquainted with the facts of each case, to the end that they might be prepared to exercise a wise discretion — a .discretion tending to promote justice.
In the case of State ex rel. Meinzer v. Diveling, 66 Mo. l. c. 379, it was said: “When the terms of the law are so ambiguous as to create a doubt, recourse may be had to the occasion of the provision, the mischief complained of, and the remedy sought to be applied by the lawmaker. When there can be no question as to the intent, it may be followed, though not strictly according to the letter of the law."
In Corrigan v. Kansas City, 211 Mo. l. c. 650, this court said: “In ascertaining the meaning of a law, whether organic or statutory, it is always permissible to consider the consequences of any construction proposed. In obedience to this wise and just rule of construction, this court has many times held that it is not to be presumed that unjust or unreasonable results are to flow from the law; and it should not be construed so as to accomplish such results if its terms will permit of an interpretation that is just and reasonable.” [See, also, Plum v. Kansas City, 101 Mo. 525, and Lamar Water & E. L. Co. v. City of Lamar, 128 Mo. 188.]
When courts or juries are clothed with power to exercise discretion in the performance of duties cast upon them by the law, the power to acquire a full knowledge of the facts upon which that discretion must operate is necessarily implied. Below we give some of the definitions of discretion required to be exercised by courts and other judicial bodies':
“Where something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. [125]*125‘According to Lis discretion,’ means, it is said, according to the rules of reason and justice, not private opinion.” [1 Stroud’s Judicial Dictionary (2 Ed.), p. 542.]
“DiscketioN. The decision of what is equitable, judicious, or right, in view of and guided by the circumstances of the case and the wisdom of the magistrate, unfettered by specific rules of positive law.” [1 Abbott’s Law Dictionary, p. 385.]
“Discretion. A liberty or privilege allowed to a judge, within the confines-of right and justice, but independent of narrow and unbending rules of positive law, to decide and act in accordance with what is fair, equitable, and wholesome, as determined upon the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles and analogies of the Jaw.” [Black’s Law Dictionary (2 Ed.), p. 375.]
The issues now under consideration incidentally arose, but were not decided by this court, in the case of Murphy v. Wabash Railroad Company, 228 Mo. 56. In the case of Young v. Railroad, 227 Mo. 307, Division One of this court, speaking through Chief Justice Valliant, said that the recovery to be had under section 5425, as amended in 1905, was wholly penal, and, consequently, the jury in fixing the amount of the penalty could only consider whether the conduct of defendant which caused the death “arose from mere inattention or was willful, wanton or reckless.” Division Two of this court, speaking through Roy, C., when this cause was here upon the first appeal, announced that the jury might and ought to consider the age, health and earning capacity of deceased, as well as the value of the support his wife would have received from him during the time he probably would have lived; and also the additional burden cast upon her by his death in caring for and supporting her minor children.
[126]*126Upon a full consideration of this case In Banc we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leave the provisions of section 5425> supra, penal in their nature, so far as said' section fixes the amount of recovery at not less than $2000, but where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered.
In other-words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but, the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section is remedial and compensatory. It follows that if this action is based on said section 5425, Revised Statutes 1909, the admission of the evidence complained of and the giving of plaintiff’s said instruction numbered 2 based on said evidence did not constitute reversible error. The cases of Young v. Railroad, 227 Mo. 307 and Boyd v. Railroad, 236 Mo. 54, in so far as they are in con-' flict with .the foregoing interpretation of said section 5425, supra, are overruled.
Hand-Car. II. It is contended by defendant that. plaintiff's petition attempts to state a cause of action under both sections 5425 and 5426, Revised Statutes 1909, and therefore, plaintiff should have been compelled to elect as to which of said sections she relied upon for her recovery. It is evident that plaintiff did, by her conduct, elect to base her recovery upon section 5425, by requesting the court to give instrucfion numbered 2, which permitted a recovery for a sum not exceeding $10,000. At the date when [127]*127plaintiff’s husband was killed a recovery could not be had under section 5426, supra, for a larger sum than $5000. [Laws 1907, p. 252.]
Hand-Car Is a Car. The decision of the point raised by defendant’s •second contention turns upon a proper construction of the aforesaid section 5425. If that sec-, ^ion authorizes a recovery for death caused by the negligent operation of a hand-car, then this action is under its provisions. On the other hand, if a hand-car is not a car within the purview of said section 5425' authorizing a recovery for death caused by the negligent operation of ‘ ‘ any locomotive, car or train of cars, or any street, electric or terminal car or train of cars, ... or any stage coach, automobile, motor car or other public conveyance,” then plaintiff’s action is not under that section.
If a hand-car when operated on a railroad track is a car within the letter and spirit of the foregoing statute, then plaintiff’s action is clearly founded on section 5425; otherwise, her petition only states a cause of action under section 5426, supra.
At first impression it might appear that the word car as used in said section 5425 was only intended to apply to cars used in transporting passengers, but the language of the statute does not warrant such a construction. The statute includes locomotives, construction cars and terminal cars, which are seldom or never used for the transportation of passengers. Webster defines a car as “a vehicle adapted to the rails of a railroad.”
Statutes of other States quite similar to ours have been held to embrace hand-cars under the general designation of “cars.” [Perez v. Railroad, 28 Tex. Civ. App. 255; Benson v. Railroad, 75 Minn. 163; Railroad v. Crocker, 95 Ala. 402; Railroad v. Artery, 137 U. S. 507.] The above cases and the statutes they construe are fully digested in Boyd v. Railroad, 236 Mo. 78, 79.
[128]*128In a very recent case the Supreme Court of Alabama held that a motor car used upon railroad tracks in an underground mine was a car within the purview of the statute of that State which permits the recovery of damages for the negligent operation of a “car or train upon a railroad.” [Woodward Iron Co. v. Lewis, 171 Ala. 233.]
In Freeman v. Shaw, 126 S. W. 53, the Texas Court of Civil Appeals held that pushing a car by hand for the purpose of distributing ties was a part of the operation of a railroad. So it appears that the speed of a car or the manner in which it is propelled does not determine whether it can properly be classified as a car.
We hold that the provisions of said section 5425 embrace the right of recovery for death caused by the negligent operation of hand-cars.
Nor was it necessary under the pleadings and facts of this case to prove that defendant’s employees in charge of the freight train which killed Boyd were negligently operating said train. If the act of defendant’s section foreman in operating the hand-car placed Boyd in such a perilous position that he could not escape being killed by the freight train, then the defendant is liable,
Duty of Section-Hand. III. It is further insisted that plaintiff cannot recover because it was the duty of her husband as a section hand to look out for defendant’s freight train and keep out of its way, regardless of any negligence of defendant’s foreman. In support of this contention defendant cites: Degonia v. Railroad, 224 Mo. 564; Evans v. Railroad, 178 Mo. l. c. 517; Ring v. Railroad, 112 Mo. 220; Sissel v. Railroad, 214 Mo. 515; Williamson v. Railroad, 139 Mo. App. 481; Van Dyke v. Railroad, 230 Mo. 259; and Hitz v. Railroad, 152 Mo. App. 687. In each of the cases above cited the employee killed was not [129]*129riding upon a hand-ear, bnt was working, walking or standing npon a railroad track with no fogs to obstruct his view, and with full opportunity to observe and get out of the way of approaching trains.
The facts are entirely different in the case at bar, where the alleged negligence of defendant’s section foreman carried the man to a point where he had only a fraction more than two seconds to get off of a rapidly moving hand-car and out of the way of a still more rapidly approaching freight train.
If Boyd possessed the right or the physical power to stop the hand-car and get off the track before entering the cut those facts do not appear in the evidence. It was proved that defendant’s foreman was warned by another employee of the danger he would incur by going into the cut without first ascertaining if a train was approaching; and that the foreman paid no attention to such warning.
It is apparent that plaintiff’s husband could not have stopped the hand-car and alighted therefrom without first, in some way, overcoming the will of the man that defendant had placed over him as a foreman. Under the facts as pleaded and proved, the issue of negligence or no negligence on the part of defendant was for the jury. [Schroeder v. Railroad, 108 Mo. 322.]
Assumption of Risk. In the case of San Antonio & Aransas Pass Railway Co. v. Stevens, 37 Tex. Civ. App. 80, it was held that a member of a bridge gang while riding on a hand-ear under the direction of a foreman did not assume the risk of colliding with a train. In the same case it was also stated that: “It cannot be questioned that to run a hand-car, freighted with human life, on the time of a passenger train, over the same track, is negligence of the most culpable character.”
[130]*130There is no evidence in the case at bar which would have justified the trial court in holding as a matter of law that plaintiff’s husband assumed the risk of a collision with defendant’s freight train at the time and place where he was killed.
IV. Further error is assigned in the action of the trial court in giving instruction numbered 1, which is as follows:
"1. The court instructs the jury that it is charged in the petition and admitted in the answer that Charles J. Boyd, mentioned in the evidence, was, at the time of his death, the husband of the plaintiff, Jennie Boyd. That it is charged in the petition and admitted in the answer that the defendant on the 29th day of July, 1905, was a railroad corporation running its line of road through Barton county, Missouri. That it is admitted by the defendant that on the 29th day of July, 1905, plaintiff’s said husband, Charles J. Boyd, was a section hand on defendant’s road in Barton county, Missouri, and was killed on that day. It is also admitted by the parties that on the date aforesaid there was a heavy fog prevailing at the place where said Boyd was killed. It is admitted as charged in the petition that Lee Mead was defendant’s foreman of an extra gang at the time and place of said Charles J. Boyd’s death. Now; if the jury find from the evidence that the act of the foreman in going around the curve on a hand-car in a heavy fog without stopping to listen or sending a man forward to ascertain whether or not a train was coming, if they find he did this, was such an act as a person of ordinary care and prudence as such foreman, would not have done, then they should find for the plaintiff. Unless you so find your verdict will be for the defendant. ”
This instruction is assailed on the ground that it assumes the death of Boyd was caused by the alleged negligent act of defendant’s section foreman in carry[131]*131ing him (Boyd) into the railroad cnt on a hand-car where he was run over and killed, withont requiring the jury to find that said alleged negligence was the canse of the killing. We find that the defendant’s contention on this point ds sound and constitutes reversible error. Defendant in its answer pleaded contributory negligence on the part of Boyd, in that he carelessly and negligently jumped off of the rear end of the hand-car and remained on the track until killed, when he had time after the discovery of the approaching train to alight from the hand-ear and go to a place of safety.
As all the other employees working on the same hand-car with Boyd did escape from the track without injury we find that there was some evidence upon which the jury could have found that deceased was not using ordinary care, and under the evidence in this case whether he did use ordinary care was for the jury.
Whether it was Boyd’s duty to jump off of the rear end of the hand-car and assist in removing it from the track, whether there was a more safe place for him to have gotten off, or whether he had time to select a safe place to alight, were all questions for the jury, and, therefore, they should not have been commanded by the instruction given to find that the alleged negligence of defendant in running the hand-car into the cut was the cause of Boyd’s death.
Plaintiff’s instruction numbered 1 is also assailed on the further ground that it ignores the defenses pleaded by defendant. We do not think that objection can avail defendant. The omission to refer to defenses pleaded was mere non-direction, and if defendant thought its defenses should have been specifically called to the attention of the jury, it was its duty to ask instructions which would have accomplished that result.
In civil cases the law does not require the plaintiff or the defendant to request instructions. If they pre[132]*132fer to try a case without instructions they may do so, unless the court gives instructions of its own motion, which it is not required to do. [Sec. 1987, R. S. 1909; Coleman v. Drane, 116 Mo. l. c. 394; Brown v. Globe Printing Co., 213 Mo. l. c. 652; Minter v. Bradstreet Co., 174 Mo. 444, l. c. 491.] However, when a plaintiff procures instructions to he given they must correctly state the law and not assume that disputed facts are admitted to be true. [Neas v. Railroad, 138 Mo. App. 484.]
For the error contained in plaintiff’s instruction numbered 1, the judgment is reversed and the cause remanded for new trial.
Lamm, G. J., and Walker and Faris, JJ., concur in paragraphs one and two, and in the result; Bond and Graves, JJ., concur in paragraph one and in the result, Graves, J., in separate opinion in which Faris, J., concurs; Woodson, J., dissents in opinion filed.