In Division One.
VALLIANT, J.
Plaintiff’s husband was run over and killed by a train on defendant’s road near Wright City, in Warren county, April 9, 1897, and this suit is to recover the damages allowed by the statute in such case when the killing is the result of defendant’s negligence.
The petition stated that plaintiff’s husband was walking eastward on the railroad track about a quarter of a mile east of Wright City, where the track was level and straight for a long distance and which for many years pedestrians to and from that town had been accustomed to use as a road and footpath by the forbearance and tacit consent of the defendant; that the killing of plaintiff’s husband was the direct result of the negligent, careless and reckless manner in which the train was run, in this:
[267]*267“That after defendant’s employees in charge of and operating said train seeing, or by the exercise of reasonable care and diligence, had they not been reckless in operating said train, could have seen, the dangerous position in which plaintiff’s deceased husband, Caleb M. Morgan, was situated, and seeing, or by the exercise of reasonable care and diligence, if said train had not been recklessly operated by defendant’s agents and servants in charge thereof, could have seen, the imminent peril in which her said husband was placed, and that the deceased was unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary-signal in time to avert the injury herein complained of, and in fact did not at any t-ime before the injury to and death of her said husband, either ring the bell, sound the whistle, or give any other signal by which her said husband might be warned of the near and dangerous approach of said train, and negligently failed and neglected to use the brakes or other appliances provided' for stopping said train made up as aforesaid, and negligently failed to use the appliances provided and at hand for putting said train under control and stopping same before it struck and killed her husband, but, on the contrary thereof, recklessly, negligently, willfully and wantonly ran its said train against the plaintiff’s said husband, so mutilating, wounding and bruising him that from the effects thereof he then and there immediately died.”
The answer admitted that defendant was a railroad corporation, etc., and that plaintiff’s husband was killed by one of its trains at the time and place named, denied all other allegations of the petition, and averred that his death was due solely to his own negligence in then and there walking on the track without looking or listening when by so doing he could have heard the train in time. Reply, general denial.
Briefly stated, the material facts brought out at the trial [268]*268were as follows: Wright City is a village of about 450 inhabitants; the country immediately around it is thickly settled. There is a curve in the railroad track just east of the depot, which obstructs the view, but after passing around it, the track is straight and the view is clear for 'a distance of 1,300 feet down to the Kennedy crossing, where the accident occurred, and so on to the Stringtown road crossing, a quarter of a mile or so further east. It is about half a mile from the depot to the Kennedy crossing.
The Kennedy crossing is a private farm crossing, the Stringtown road is a county road crossing the railroad. Near the Stringtown road crossing is a tie yard where for eight or ten years a considerable number of men engaged in that business have delivered ties to the railroad. Wright City is the usual trading point for these tie men, and they usually walk on the railroad track in passing between the tie yard and the town. The railroad track at this point is fenced as the law requires, and there is a public road running parallel to the railroad on the south side, though it varies in distance from the railroad, being 200 yards from it at the Kennedy crossing. Eor twenty-five years or more the railroad track from Wright City to Stringtown road crossing had been constantly used by the town people and people residing in the neighborhood, men, women and children, as a footpath in perference to the county road, and steps had been constructed over the railroad fence in the town, and also near the Stringtown road crossing, for the convenience of pedestrians going upon the track. Morgan, the plaintiff’s husband, was a farmer living about five miles northeast of Wright City and engaged also in the tie business, and was accustomed to pass to and from Wright City and the Stringtown road by walking along the railroad track. On the day of the accident he was walking on the track going east towards the Stringtown road crossing, when he was struck and [269]*269killed by a train going in the same direction. He was sixty-three years old, his senses of hearing and seeing unimpaired, but he apparently did not hear the train, did not look around nor see it until it struck him. There was no one but the train crew on the train, engineer, fireman, brakeman and conductor, neither of whom saw Morgan and they did not know that an accident occurred until they were afterwards informed of it. It had been a train carrying seventeen empty freight cars, which came from the east to Wright City. There it left the freight cars, and the train then reduced to engine, tender and caboose, was returning east. It was a special train, not running on schedule time. There being no turn-table at Wright City, the engine had to run backwards on its return, pushing the tender in front, and drawing the caboose after it. The conductor and brakeman were in the caboose, from which they had no view o'f the track. The tender was wider than the engine, and was so loaded with coal as to prevent the engineer and fireman from seeing the track ahead of them, and they did not see Morgan at all, either before or after the accident, or know that an accident had occurred. The train was running at the time about twenty-five miles an hour. It was down grade, and could not have been stopped in less space than 500 feet. Before leaving the depot at Wright City, the engineer whistled off brakes by giving two blasts of the whistle. There was an automatic appliance for ringing the bell, and the engineer, who was called by plaintiff as a witness, testified that he set it ringing when he pulled out from the depot and did not stop it until the train had passed the Stringtown road crossing; the other witnesses for plaintiff testified that the bell was not ringing. There was no whistle blown after starting. The only evidence was that introduced by the plaintiff, except that the defendant introduced some photographs of the railroad track and its immediate surroundings at the points referred to [270]*270in the evidence. The defendant asked but one instruction, which was asked at the close of plaintiff’s evidence, and again at the close of the whole case, and which was in the nature of a demurrer to the evidence, and was by the court refused, and defendant duly excepted. At the request of the plaintiff the court gave the following instructions:
“1. The court instructs the jury that under the law, if they find for plaintiff, their verdict must be for five thousand dollars, and can not be for more nor less than that sum, if for the plaintiff.
“2. The court instructs the jury that if they shall believe from the evidence that Caleb M. Morgan, at the time he was killed, was the husband of plaintiff, and that this suit was brought within six months after his death, and shall further find from the evidence that the place on defendant’s track where deceased was struck by defendant’s train, was near a private crossing on defendant’s track, used as a private or farm crossing over said track, and that the track, at the time, was in such a condition and position, for a distance of eight hundred feet or more west from the point of the catastrophe, that a person walking thereon could have been seen by the persons in charge of said train, had they been at their proper posts, and on the lookout ahead of them, and that said track, at the place where Morgan was killed, and for some distance, west thereof had, for years prior thereto, and was at about the time said Morgan was struck and killed, frequently used by pedestrians in going to and from Wright City and the Stringtown crossing and points between the said places; and that Caleb M. Morgan, while walking upon defendant’s track, became in imminent peril of being struck by defendant’s train, and defendant’s employees in charge of said train became aware of his peril of being struck in time to have enabled them by the exercise of ordinary care, to have stopped said train and to have averted [271]*271the in jury to said deceased, or if the jury believe from the evidence that said employees in charge of said train, by the exercise of ordinary care, could have become aware of his peril in time to have stopped said train and to have averted said injury to said deceased, and they failed to exercise such care and stop said train, and that by reason of such failure to exercise such ordinary care, the said train was not stopped, and said Morgan was struck and killed, then the jury must find for the plaintiff, though the jury may find that the deceased, Caleb M. Morgan, -was guilty of negligence in'walking on defendant’s track at the time. And by ordinary care is. meant such care as an ordinarily careful and prudent person would exercise under the same or similar circumstances.
“3. The court instructs the jury that the defendant railroad company is not bound to whistle or ring the engine bell when approaching a private or farm crossing, and, further, that said defendant railroad company may regulate the speed of trains approaching private crossings as it may desire by its own regulations, but, nevertheless, the jury are instructed that said defendant railroad company knowing that said private crossings are likely to be used by persons passing over and upon the railroad track, are bound, when approaching said crossings, to keep a proper lookout and to use all reasonable precautions when-approaching said private or farm crossing, to prevent injury to any one on or approaching such crossings.
“4. If the jury believe from the evidence that at the point on the track of the defendant where plaintiff’s husband was killed, said track was clear and unobstructed and sufficiently straight to permit a plain view along the track from any approaching train; and if the jury believe further, that at said point where said deceased was struck by the train, the roadbed of the defendant, both east and west of said spot, was at that time used, and had for a long period of time prior [272]*272thereto been used, with the knowledge of the defendant, its servants and employees, by pedestrians as a passway leading to and from the village of Wright City, then it was the duty of the employees of the defendant in charge of the train, when approaching such portion of the roadbed of defendant as was used as aforesaid as a passway, to keep a lookout for persons and to ascertain that the track was clear.
“5. And if the jury further believe from the evidence that the engineer or fireman or other employees in charge of the train which struck the deceased saw the deceased on the track, or might have seen him by the exercise of ordinary care on their part; and if the jury further believe that the deceased was unaware of his peril and was proceeding along the railroad track, unconscious of the approaching train; then it was the duty of such engineer or fireman or employee of the defendant, so observing the deceased, to give him proper warning of the approaching train, and it was his duty to- give such warning by such a signal as was within his power, as could be likely heard and would be likely heard by any person possessing, in an ordinary degree, the sense of hearing in the position the deceased occupied. And if such signal was given and unheeded, then it was the duty of such employee to stop said train, provided said train could be stopped with safety to those on board of the same; and unless, at the time of the injury, the employees of the defendant in charge of said train used the means at their command to provide for the safety of the deceased, after they discovered his imminent peril, the jury may find a verdict for the plaintiff in this case, although they may believe that the plaintiff was guilty of negligence in being upon the track of the defendant and in permitting himself to be inattentive to the dangers surrounding him.”
To these instructions defendant duly excepted. There was a verdict for plaintiff for $5,000, motion for new trial, which was overruled, and defendant appealed.
[273]*273I. Appellant’s first proposition is -that the court erred in refusing its instruction in the nature of a demurrer to the evidence. This is based on two grounds: Eirst, the plaintiff’s husband was guilty of negligence contributing to the accident; second, he was a mere trespasser on the railroad tract and the defendant owed him no duty to be on the lookout for him.
It will simplify-our task if we avoid the discussion of legal propositions not in the case. There can be no doubt under the evidence that the death of the plaintiff’s husband resulted from the negligence of the defendant’s servants! in charge of the train, and the negligence of the deceased himself contributing thereto.' The train crew started out from the station with the conductor and brakeman in the caboose in the rear, where they could not see the track in front, and the engineer and fireman were behind the tender, upon which coal was so piled up that they could not see ahead of them, or as the counsel for appellant say in their brief: “The tender was wider than the engine, and being filled with coal ¡effectually shut off the engineer’s and fireman’s view of the track to the east.” There was no excuse for that condition. True, there was no turn-table at-the station, and that fact made the running of the engine backwards a necessity, but piling the coal up so as to shut out the engineer’s view of the track, and locating the crew so that not one of them could see what they were running into, was a mere convenience. If, after the conductor and brakeman had closed in the caboose, and the engineer had started the train, he and the fireman had blindfolded themselves, they would not thereby have been rendered less capable of guarding against such accident than they were when in the condition as shown in this evidence.
And, on the other hand, the deceased, a man in the full possession of his senses, selecting for his own convenience the dangerous path in the railroad track where he was bound to [274]*274know that a train was liable to pass at any time, and as liable to come from one direction as the other, walking leisurely and unconcernedly, without turning his head to look, and apparently allowing his meditation to so close his ears that the ordinary rumble of the train and the sound of the bell (if the bell was ringing) were not heard, was certainly guilty of negligence, but for which, even with the negligence of the defendant’s servants, he would not have been killed.
We will therefore not now stop to discuss the law of contributory negligence; that law has been discussed from almost every conceivable point of view in our reports. Rut conceding the contributory negligence of the plaintiff’s husband, we advance to the consideration of the question, is the defendant liable upon the ground that it failed to use the means at it’s hand to save the man when by the exercise of ordinary care it would have discovered his peril in time to have done so ? The answer of the appellant to this question is, that its servants did not actually see the man, and that as he.was a trespasser on its track, they owed him no duty to be on the lookout for him; and section 2611, Revised Statutes 1889, is quoted as authority for so designating him. But we .can not dismiss the subject by simply calling him a trespasser, for even a trespasser is not entirely beyond the pale of the law.
In a recent case the writer of this opinion took occasion to express his individual inability to appreciate the reasoning upon which is founded the so-called humane doctrine, that is, the doctrine permitting, under certain circumstances, a recovery on the ground of negligence when the party has himself been guilty of contributory negligence. [Schmidt v. Railroad, 149 Mo. 269, l. c. 285-6.] But at the same time he recognized that such is the law, too firmly settled to be now contested, and that it stands on ample authority, if on nothing else, not only in this jurisdiction but elsewhere.
[275]*275The aim of all law is the attainment of right and justice. Experience has shown that this is best accomplished by the laying down of certain general principles by which all conduct must be adjudged rather than by leaving each case to make its own law. Yet with the utmost care and the'light of experience it is found that human wisdom is finite, that what we sometimes call the result of the perfection of reason is still imperfect, and we are compelled to own that exceptions must be made to our best reasoned rules.
The most satisfactory statement of the doctrine which flows from the exception to the rule of contributory negligence, and the ground upon which it stands, that the writer has seen, is in Kellny v. Railroad, 101 Mo. 67, l. c. 74-5, wherein this court, per Brace, J., said: “We know of but.one exception to the rule that where an injury is the product of the joint concurring acts of negligence of both plaintiff and defendant the plaintiff can not recover, and" that is an exception made, on grounds df public policy and in the interest of humanity, to prevent and restrain as far as may be a wilful, ‘reckless or wanton disregard of human life or limb, or property, under any circumstances, and that is when the injury was produced by the concurrent negligent acts of both plaintiff and defendant, yet if the defendant, before the injury, discovered or by the exercise pf ordinary care might have discovered the perilous situation in which the plaintiff was placed by the concurring negligence of both parties, and neglected to use the means at his command to prevent the injury, then his plea of plaintiff’s contributory negligence shall not avail him. This exception 'proceeds not upon the theory that the defendant has been guilty of another and independent act of negligence which is the sole cause of the injury and which must be charged as a separate and independent cause of action, but upon the ground that the negligence he was then in the very act of perpetrating, [276]*276was characterized by such recklessness,- willfulness or wantonness as that he shall not be heard to say that the plaintiff was also guilty of contributory negligence.”
If there was -ever a case, short of willful murder, calling for the application of that doctrine and justifying its recognition in our law, it is the case at bar.
The clause of the statute above referred to by appellant is a part of that statute which imposes on the railroad company the duty of fencing its track, and penalties for failure to do so, and is as follows: “If any person not connected with or employed upon the railroad shall walk upon the tracks thereof, except where the same shall be laid across or álong a publicly traveled road or street, or at’ any crossing, as hereinbefore provided, and shall receive harm or accident on account thereof, such person shall be deemed to have committed a trespass in so walking upon said track in any action brought by him on account of such harm against the corporation owning the railroad, but not otherwise.”
The meaning of that clause in the statute is that under such circumstances the walking on the railroad track is to be considered negligence per se, and will defeat a recovery in a case where contributory negligence would defeat it. Such is the effect of the quotation in the brief of appellant’s counsel from the text-writer. [Beach on Contr. Neg. (3 Ed.), secs. 202-212.] And if he was simply a trespasser, the same law-writer is authority for saying that the liability of the company “must be measured by the conduct of its employees after they become aware of his presence, and not by their negligence in failing to discover him.” [Id., sec^ 203.] This court has recognized the saíne rule. In Rine v. Railroad, 88 Mo. 392, l. c. 400, the defendant asked this instruction: “Defendant is liable in this case only if its servants failed to exercise ordinary care to prevent the injury after they became aware of the [277]*277danger to which, deceased was exposed,” before giving which the court added, “or after they might have become aware thereof by the exercise of ordinary care.” This court held that the instruction should have been given as asked, and that the modification was error. In that. case the engine was switching, running backwards, the engineer and fireman were at their posts, the deceased was familiar with the tracks and switches, knew the engine was coming, looked back and saw it when it was close to him, the fireman saw him, but supposed he would step off the track in time. Under that state of facts the court, per Black, J., said: “Here the fireman and engineer were at their proper places, were not going at an unlawful rate of speed, and were not negligent in the management of the engine and tender, unless it was after one of them saw deceased was in actual danger. The deceased was a man of discretion, he was familiar with the operation of the train and also with the operation of the switches over one of which he had just passed. All this the fireman well knew, and he had a right, under the circumstances, to assume that the deceased would use ordinary prudence, at least, for his own protection. Such a qualification as the one in question will be proper in some cases, but it can not and ought not to be applied in this case.” [L. c. 400.]
In Barker v. Railroad, 98 Mo. 50, the deceased was a trespasser on the track within the terms of the statute quoted, and there was no qualification of that statute. The court by the same learned judge said: “Being a trespasser, the company owed him no duty except not to wantonly, willfully or with! gross negligence injure Mm.” Then after referring to the doctrine we are now discussing, the court said: “But this duty on the part of defendant’s servants only arises when and after the perilous position of the person has been discovered. . . . . But the argument is made on behalf of the plaintiff [278]*278that if the engineer was at his post of duty and on the lookout, he could have seen the deceased, and if he was not, then he was guilty of negligence. The answer to all this is that the company owed the deceased no duty to be on the watch for him. .... As to him, there was no breach of duty, for a simple failure to discover him in the commission of a trespass. As stated by a reliable text-writer, the general duty of a railroad company to run its trains with care, becomes a particular duty to no one until he is in a position to complain of neglect. Cooley on Torts, 660.” After thus stating the law, the court said; “It is thought advisable to say again that Barker got upon the track and was killed at a place where the defendant’s road was fenced and where there was nothing in the surroundings that' would naturally or reasonably lead the servants in charge of the train to suspect that persons would be on the track. We have been speaking of the case before us, not of others which may present a different state of facts.”
The above authorities state the law as contended for the appellant as strongly as any to which our attention has been drawn, and it 'will be noted that they state it with reservation. In Williams v. Railroad, 96 Mo. l. c. 280, after citing Isabell v. Railroad, 60 Mo. 475; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 477; Yarnell v. Railroad, 75 Mo. 583, and Maher v. Railroad, 64 Mo. 267, Judge Black, again speaking for the court, said: “The general rule of the authorities before cited implies that the engineer is not bound to foresee the wrongful presence of persons upon the track or cars. The rule, however, as before stated, will in some cases, require a modification. It was said in the case of Harlan v. Railroad, 65 Mo. 22, that the company would be liable, though the person injured or killed was wrongfully on the track, if the defendant failed to discover the danger through the recklessness or carelessness of its employees, when the exercise of [279]*279ordinary care would have discovered the danger and averted the calamity. This qualification of the general rule was in substance asserted in Scoville v. Railroad, 81 Mo. 483; Frick v. Railroad, 75 Mo. 595; Kelly v. Railroad, 75 Mo. 138.....Thus it will be seen that eases may and do arise where, though the company is entitled to a clear track, it can not fairly be presumed that the track is clear. A duty then arises to look out, and the liability is not limited to want of care after discovery of the danger.”
It is argued’ that since the statute denounces as a trespasser one walking on the track of a railroad that is fenced, no custom or usage can alter that condition; and Lawson on Usages and Customs, sec. 216, is cited. Of course, usage and custom can not repeal a statute, and it is not contended here that it does. But usage and custom may change the condition of a thing upon which the statute operates; and by usage and custom a publicly-traveled footpath may be in fact created within an otherwise private inclosure, so that a person found walking upon it would not be amenable as a trespasser. The language of the statute itself excepts a track laid along a “publicly-traveled road.” To fill this description it need not be a public road, but must be publicly traveled. If the railroad company, as the evidence tended to prove in this case, for more than twenty-five years had acquiesced in its track being used as a footpath by the whole community, it can not, if it does wrong, take refuge in the fact that its track was inclosed private property. Under such circumstances, this court in Lynch v. Railroad, 111 Mo. l. c. 609, per Thomas, L, said: “We are not called upon at this time to decide whether a trespasser can take advantage of a failure of a railroad company to comply with city ordinances of the character of those read in evidence in this case, for all the evidence as set out in defendant’s statement shows that the railroad right of way and tracks at [280]*280the point of the accident, were habitually used by the public for a passway to the streets of the city, there being four gates in. the fence to enable pedestrians to get upon the right of way and tracks. Therefore, so far as the locus in quo, as to pedestrians, is concerned, it is the same as if it had not been fenced at all.” In the same case it is decided that it is proper to instruct a jury that they may find for the plaintiff not only if the defendant’s servants saw the deceased in time to avoid the injury, by the exercise of ordinary care, but also if they by the exercise of ordinary care might have seen him in time to have averted the'injury; citing and approving Guenther v. Railroad, 108 Mo. 18; and Fiedler v. Railroad, 107 Mo. 645.
In Chamberlain v. Railroad, 133 Mo. 587, where the defense was as here,- that the deceased was a trespasser on the track, and therefore they owed him no duty to be on the lookout for him, this court in an opinion by Gantt, O. J., approved an instruction that authorized a verdict for plaintiff if the jury found inler alia that the servants' iff charge of the train by the exercise of ordinary care could have seen the deceased in time to have averted the accident by the appliances at hand and failed to do so, and affirmed a judgment for plaintiff on a verdict found under that instruction.
There are other cases in our reports on this subject, but those above quoted are sufficient to show that the law on this point has been well considered and definitely settled by this court, and our decisions are all in harmony. - The-liability of the defendants in th'e Riñe and Barker cases being limited to the negligence of the trainmen after they became aware of the perilous position of the person in jeopardy because the facts of those cases did not justify a wider range of inquiry, and in the other cases extending it to negligence in failing to use the means at hand to prevent the injury when they might with ordinary care have discovered the peril. In the one class of [281]*281cases the train crew had no reason to expect a man to be on the track, in the other class they had reason to expect such a condition, and the duty of those handling the train varied as the circumstances required.
In this case the men in charge of the train had no right to expect a clear track. Eor more than twenty-five years, as the evidence tended to prove, the track was the footpath for the- pedestrians of the town and vicinity. Steps built to go over the fence, in addition to the gates the law required, were standing invitations to the public to come upon tire tracks and use them for a footpath. In the Barker case it was said: “There was nothing in the surroundings that would naturally or reasonably lead the servants in charge of the train to suspect that persons would be on the track;” but the reverse is true of this case. We attach no significance to the fact that the man was killed near the farm crossing, for he was not using the crossing as such, he was walking along the track, not merely crossing it, and his proximity to the Kennedy crossing was a mere coincidence. The law of the case would have been the same if there had been no crossing at that point. As an abstract proposition it was negligence in the trainmen to have failed to observe that crossing, but the concrete proposition with which we are dealing is, that it was negligence in 'them to have failed to lookout for a man walking along the track as the plaintiff’s husband happened to be and as the evidence tended to show the railroad people should have known some one was liable to be.
The very composition of this train, the necessity of running it as it was, the impossibility, under the circumstances, of the engineer and fireman seeing from their usual positions on the engine the track in front of them, created a necessity for placing some one of the crew where he could see, and distinguishes this case from the Riñe and Barker and other like [282]*282cases. Under the circumstances of this case, to station some one where he could see what the train was running into, would not be extra caution, but would be the suggestion of the most ordinary prudence.
The plaintiff had a right to go to the jury on the hypothesis that the servants of defendant were negligent in failing to use the means at hand to avert the calamity after, by the exercise of ordinary care, they could have discovered the peril. •
The demurrer to the evidence was properly overruled.
II. The instructions given were in the main like those given in other cases and approved by this court; but it does not follow that an instruction which is proper in one case is necessarily proper in another, having a general resemblance to the first. As we have seen in the Riñe and Barker cases, it was adjudged to be improper to submit an hypothesis to the jury involving negligence of defendant’s servants after they might, by the exercise of ordinary care, have discovered the peril, yet altogether proper to have done so in other cases cited. So, in the case at bar, it was improper to have submitted to the jury the question as to the conduct of defendant’s servants after they became aware of the peril of the deceased, for the reason that there was no evidence tending to show that they did see him at all. It was also improper to have instructed the jury, under the peculiar circumstances of this case, that it was the duty of the men in charge of the train to have stopped it if they could have done so by the exercise of ordinary care. That would be a correct instruction under certain conditions, examples of which are shown in the facts of the cases cited, where such instructions were given. But what we here say is in reference to the facts of this case. An engineer at his post, in view of the track, seeing a man on it, apparently able to take care of himself and the conditions such that he can get off in safety, has a right to presume that he will do so, and the engineer is [283]*283not required to stop his train whenever he comes within stopping distance of every man he may see' on the road. If authorities were needed on this proposition, they will be found collected in abundance in note 4, section 203, Beach on Contrib. Neg. (3 Ed.). But the law does impose on the engineer under such circumstances the duty of 0iving such warning signals as may be at his hand, and as the situation reasonably demands. Good common sense, brightened with the light of experience, will dictate what he should do. If the facts were as the evidence tended to prove, the plaintiff’s husband was walking on the track unconscious or unmindful of his danger, not hearing the rumbling of the train nor the ringing of the bell; then if some one had been on the lookout, even after the train had approached too close to be stopped, and had given a few sharp-blasts of the whistle it would not be unreasonable to presume the man’s attention would have been aroused and his life have been saved. At all events, if that had been done, the defendant could with better reason say that its servants had not been reckless in their management of the train.
The only errors we find in the instructions are those above specified, namely, first, the hypothesis that the men in charge of the train saw the deceased in time to have averted the accident, and, second, that it was their duty to have stopped the train. With those features eliminated, the instructions properly declared the law applicable to the evidence.
, But whilst those features of the instructions were inapplicable to the facts of this case, they were as to this case mere abstract propositions that could not possibly have affected the verdict. There was no pretense that any man on the train saw the man on the track. The undisputed facts show that the trainmen had willfully placed themselves where they could not possibly see before them. They went blindly down the road, neither seeing nor caring for the consequences, and never knew [284]*284that they had killed the man until they learned it historically. How, then, could the jury have possibly been misled by the statement that if the engineer saw the man in time to have stopped the train, he should have done so ? The law is that a judgment should not be reversed unless it is believed that error was committed “materially affecting the merits of the action.” [R. S. 1899, sec. 865.] There is no such error in this record and therefore the judgment is affirmed.
Brace, P. J., concurs; Robinson, J., concurs in the result; Marshall, J., dissents.
In Banc.
PER OURIAM. — The foregoing opinion by Valliant, J., in Division No. One,
is concurred in by Gantt, G. J., and Burgess and Brace, JJ.-, Robinson, J., concurs in the result; Sherwood and Marshall, JJ., dissent.
I.