LAMM, J.
Luke Fletcher was fifty years old. On the sixth day of July, 1805', he was defendant’s servant as section foreman in Iowa. On that day he was struck on defendant’s track by one of defendant’s locomotive engines pulling a. light passenger train within the corporate limits of Kirksville in Adair county, Mis[69]*69sauri, and was so hurt that presently he died. Though once married, he was unmarried at his death, leaving no minor children, “natural or adopted,” hut leaving one son, who had reached his majority, surviving him. Presently Mr. Murphy was appointed administrator of his estate, took on himself the burden of that trust by qualifying, and sues defendant in two counts — the first, to recover $10,000 for Fletcher’s wrongful and negligent death; the second, to recover a small remnant of wages due decedent as section foreman.
At the trial defendant confessed in open court the allegations of the second count to be true, and that the administrator was entitled to recover the amount sued for, to-wit, $59.30. The trial progressing only on the first count, the second needs no further consideration.
The first count of the petition is a full and elaborate pleading, and may be characterized as predicated on the right to recover for the wrongful and negligent death of Mr. Fletcher on the humanitarian theory. To that end, it charges that he was on defendant’s main track in the city of Kirksville at a place where, from long and common use by footmen in going north and south-in said city, with knowledge and acquiescence of defendant, it had ho right to expect a clear track; that such condition raised a duty to keep a lookout for persons so using the track and exposed to danger; that defendant negligently ran its locomotive and train against decedent and fatally injured him; that its servants and agents in charge of said locomotive and train saw, or by the use of ordinary care might have seen, him in peril in time to have stopped the engine and saved his life, but negligently failed to keep a watchful lookout for persons who might be in peril ahead of the engine on the track, or negligently failed to stop said engine after they knew or should have known of defendant’s danger, when by the exercise of ordinary care they could have discovered it in time to have saved him.
[70]*70There is another theory of the petition upon which a right to recover is predicated, viz., that, place and time considered, the train should have been run at such low rate of speed that it would be under control and could be quickly stopped. That, in breach of that duty, the train killing Fletcher was negligently and carelessly run at twenty-five miles an hour and not under control. But, as the case was not put to the jury on this theory, it is afield.
The answer was a general denial, coupled with a plea of specified contributory negligence, in that decedent was negligently, lying down upon defendant’s track and remained there without looking or listening for the approach of trains, when by looking he could see, or by listening he could hear, their approach in time to have saved himself, and without exercising any care whatever for his own safety; that his death was solely the result of his own negligence in lying down upon the railway track of defendant, not at the crossing of any public highway, in open and express violation of section 1106 of the Revised Statutes of Missouri.
No reply was filed, but as we have uniformly held that if a trial proceeds as if the new matter in the answer was put in issue by denial in a reply, one would be taken as filed, this phase of the case may be put aside.
The facts will appear in the opinion.
Defendant called no witnesses and put in no evidence. The plaintiff, among other witnesses, called the conductor of the train, but his testimony was of no probative force one way or the other. Neither the engineer nor the fireman was on the witness stand.
The case was put to the jury on behalf of plaintiff in four instructions, only two of which are material on appeal, viz:
“1. In behalf of the plaintiff the court instructs the jury that if you find and believe from the evidence, [71]*71that on the 6th day of July, 1905, the defendant operated a railroad, running through the corporate limits of the city of Kirksville, Adair county, Missouri, and that said railroad crosses from south'to north at about right angles, among others the following named streets in said city of Kirksville, and in the following order, to-wit: Michigan, Wilson, Dodson, Water, Filmo re, Scott, Pierce and Jefferson, and that on said 6th day of July, 1905, and continuously for several years prior thereto, defendant’s said railroad track, from the place where it crosses said Jefferson street to a point two thousand feet south of said crossing, with the knowledge of the defendant, wTas used and treated as a thoroughfare by a large number of persons, not employees of defendant, who were in the habit of walking to and fro thereon, in the same manner and with the same freedom as if said railroad track had constituted a highway of said city.
“And that upon the 6th day of July, 1905, Luke Fletcher was upon defendant’s said railroad track, at a point between said Scott and Filmore street, and was in a dangerous and perilous position, and in imminent peril of being struck by defendant’s train, and defendant’s employees in charge of said train became aware of his perilous position in time to have enabled them, by the exercise of ordinary care, to have stopped said train, and to have averted injury to said Luke Fletcher, 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 the perilous position of said Luke Fletcher on defendant’s said railroad track, if the evidence shows said Luke Fletcher was in a perilous position, in time to have stopped said train, and to have averted striking said Luke Fletcher, and that they failed1 to exercise said care to stop said train, and that by reason of such failure to exercise such ordinary care, the said train was not stopped, and that said Luke Fletcher was struck and killed [72]*72by said train on July 6, 1905, and that on said 6th day of July, 1905, said Luke Fletcher was an unmarried man, and left no minor child or children surviving him, and
“That on the 17th day of July, 1905, the probate court of Adair county, Missouri, appointed S. A. D. Murphy administrator of the estate of said Luke Fletcher, and that said S. A. D. Murphy duly qualified as said administrator and has since been acting as such, then you will find for the plaintiff in a sum of not less than two thousand dollars nor more than ten thousand dollars. Although you may further believe that said Luke Fletcher was guilty of negligence in going upon defendant’s track.
“And by ordinary care, as used in this instruction, is meant such care as an ordinarily careful or prudent person or persons would exercise under the same or similar circumstances.
“2. If the jury believe from the evidence, that at the point on its track, where Luke Fletcher was struck and 'killed by defendant’s train, if you find he was struck and killed on defendant’s track by one of defendant’s trains, said1 track was clear and unobstructed and sufficiently straight to permit a plain view along the track, from any approaching train;
“And if the jury further believe that at said point where said deceased was struck by the train, the roadbed of defendant both north and south of said spot, was at that time used, and had for a long time prior thereto, been used, with the knowledge of defendant, its servants and employees, by pedestrians as a passway leading to and from the business portion of said city of Kirksville, 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 per-, sons, and to ascertain that the track was clear.”
[73]*73On behalf of defendant the court instructed the jury as follows:
“1. The court instructs the jury, that if they shall believe from the evidence that the deceased, Luke Fletcher, was sitting or lying on or near defendant’s track, at the time he received the injuries of which he died, then in such case the deceased, Luke Fletcher, was a trespasser and was guilty of negligence.
“2. The court instructs the jury, that if they believe from the evidence that the deceased, at the time he received his injuries was sitting on the ends of the ties of defendant’s track, he was in so doing guilty of negligence, and the fact that he was intoxicated, if such was the fact, did not relieve him from the duty of exercising ordinary care for his own safety.
“3. The jury are instructed that in considering what their verdict should be they must not in the slightest degree be influenced by any feeling of sympathy, or the relative condition of the parties to the suit, but must lay aside all such feelings and be governed solely by the evidence as they have heard it in the trial, and the law as contained in the instructions.
“4. The court instructs the jury, that if they believe from the evidence that the deceased was sitting on the ends of the ties, at and shortly before he was struck by the engine, then plaintiff cannot recover on the ground that the bell was not rung or the whistle sounded, even if the jury believe that the bell was not rung and the whistle was not sounded. ’ ’
The following instructions were refused to defendant:
“5. The court instructs the jury, that although they may believe from the evidence in the cause, that pedestrians were in the habit of walking along defendant’s railroad track, at the place of the accident, and that the railroad officials knew of such use of the track and consented to it, at and prior to the time Luke Fletcher was struck and killed; yet if the jury shall-[74]*74further believe from the evidence, that tbe said deceased was neither walking nor standing upon the track, at and just before he was struck and killed, but was sitting or lying upon the track, then he was a trespasser and the defendant’s engineer was not bound to be on the lookout for him,
“6. The court instructs the jury, that if they believe from the evidence, that the injuries and death of deceased, Luke Fletcher, were caused by his own negligence, they will find for the defendant.
“7. The court instructs the jury that although you may believe from the evidence, that the defendant’s railroad track, at the place where the deceased, Luke Fletcher, was struck, had been used by the public as a footway to such an extent that the engineer in charge of the train ought to have kept a sharp lookout to discover persons walking thereon, yet he was under no obligations, and was not required to keep a lookout to discover persons lying on the track, and if you believe from the evidence, that the deceased, Luke Fletcher, was so lying on the track; then he was a trespasser under the law, and the defendant is not liable in this case, and your verdict should be for the defendant.”
In addition to the above, the court refused to peremptorily instruct, on defendant’s prayer, that under the pleadings and1 evidence the verdict must he in its favor.
A verdict, eleven jurors signing, was returned in the sum of $8000. On this verdict, a general judgment was rendered in favor of plaintiff — i. e., one for $8000, plus the amount confessed as due for wages on the second count.
Errors are assigned in the giving and refusing of instructions. It is contended,, further, that the cause should be reversed because one general judgment was rendered on a general verdict. In other words, that the verdict should have been on both counts of the peti[75]*75tion. Finally, it is argued that the verdict is excessive.
I. Was it error to refuse the peremptory instruction?
The question involved seeks the sufficiency of the evidence to make a case and calls for the facts. They-lie in a small compass. Assuming Fletcher’s age, employment and death, leaving no widow or minor children, together with the appointment of Murphy as administrator, as already said, then the case made on the other facts follows: It seems Mr. Fletcher, once employed by defendant as section foreman in Kirksville, at the present time was in charge of a section of the road some seventy-five miles north, in Iowa, and was temporarily visiting in Kirksville. Whether exuberance incident to the visit, or to the celebration of the Fourth of July, just over, induced over indulgence in liquor, is dark. There is no testimony indicating he was habitually in his cups. He had been in defendant’s employ for more than a generation and that fact weighs down and drowns such hypothesis. There is uncontradieted evidence tending to prove that from eight to nine o’clock of July sixth, he was seen to stagger in gait as if drunk. The doctor attending him after his hurts says he was in liquor. Absent testimony pointing to a falling sickness or other ailment, explanatory of his conduct and condition, we shall assume he drank himself drunk and in a drunken stupor lay down on the rail.
Kirksville is city of, say, 8000 souls. Defendant’s main track there runs north and south and cuts the town in two. Northeast of the locus in quo is the principal part of the town. Southwest and south 2000 townspeople live. The accident was close to a switch-stand. From that point south, for 2000 feet, defendant’s track was a tangent, on an up grade of two and one-third inches to the one-hundred feet, and with no [76]*76obstruction to interrupt the vision. The track was ballasted between the rails and from two to three feet on either side with burnt red clay, thus affording a background of color to sharply bring out to the eye an object on the track. Commencing north of the locus and running for 1000 feet south, the track was on a fill, about 15 feet from the crown to the nose of the slope, and at the place of the accident the fill was from four to six feet on a perpendicular above the natural surface of the ground. At about 9 a. m. on the day in hand, the track on that fill lay under the blazing eye of a July sun, and a man lying on the east rail of it would be in plain view of an engineer at his post óf duty on the right hand1 side of a north-bound engine for 2000 feet. Not only so, but there is evidence that the depot lay about three blocks north of the switch-stand and an engineer would be expected to keep the track approaching that depot under his eye. Not only so but signals were used at the switch-stand which it was the duty of the engineer to see, and which switch-stand was, say, fifteen feet from where Fletcher got his death. There was also a street-crossing a hundred or so feet north to be watched. Commencing north of the switchstand a little ways and running for a thousand feet south, several east-hnd-west streets of the city abutted against defendant’s track on either side. Whether they were platted on paper as crossing the track, we do not know, but the testimony shows that vehicles in those cul de-sacs, or broken streets, did not pass from east to west over the tracks.
There was uncontradicted evidence put in tending to show that defendant had no right to expect a clear .traók from the point of accident south and north for a good distance. Its track there was used for a long time, with its tacit acquiescence, by the inhabitants of Kirksville going from the southwest and south parts of the town to the northeast where the principal business section lay and vice versa. Especially was this [77]*77■so mornings, noons, and evenings. This custom had gone on for many years and no attempt was made to show that defendant took any steps to prevent such open, continuous and extensive use by the public.
The details of the testimony on the point are omitted partly because we do not construe defendant’s brief as seriously contending that, under the doctrine of a long line of cases in this court, there was no such public user shown as would raise a duty on defendant to run its train as if the presence of persons on the track was to be expected. To the contrary, defendant’s position is that (conceding the public user) the reasoning in that line of cases is unsound, and that our former interpretation of the provision of section 1105', Revised Statutes 1899, relating to trespassing by walking on the track under given conditions, is unsound.
Decedent was seen walking with tangled foot and uncertain step on the track shortly before the northbound passenger train was due. Presently, he sat down and then took one position and another as if to sleep. For ten or fifteen minutes before he was struck his position is described as recumbent, vis-. He was seated, apparently on a tie close to the east rail, one elbow was on that rail, his legs and the lower trunk of his body were east of the rail. The upper parts of his body were on and over the rail, and his head lay in the palm of the hand, supported above the track by said elbow resting on the rail. In that condition of things, defendant’s north-bound train, running twenty or twenty-five miles an hour, struck and killed him. There was evidence tending to show that no alarm was given by bell or whistle, and that the emergency air was not put on till the instant of collision, but there is no fact in the case from which a natural inference could flow that signals would have done any good to the unconscious man. The attitude of the man would indicate to any onlooker that he was asleep or otherwise unconscious. His face was not turned towards [78]*78the approaching train. The • station signal had been given at the whistling post bnt, we infer, no crossing-signals were given at city streets crossing the tracks between the post and the switchstand but the remarks made on alarm signals apply here.
Fletcher was five feet ten inches in height, and weighed one hundred and eighty pounds. There was testimony tending to show that a colored1 woman had been calling to him, while he was lying on the rail, to get off. Some testimony shows that, failing to get him off, she waved a handkerchief at the approaching train. We infer that she took her stand at the foot of the slope of the fill, which would place her some distance away. There was also testimony tending to show that the engineer was at his post of duty and looking directly down towards Mr. Fletcher as his engine approached. Other evidence showed the train could have been stopped in 350 feet. .
On such record, we are of the opinion that the refusal of the peremptory instruction was well enough. This because:
(a) In an eloquent and powerful argument at our bar and in a brief of point and force counsel deliver a set attack on the humanitarian doctrine. ' To feather one arrow aimed at it, it is argued in effect, that instead of being humane it faces the other way, for that it opens a new door to the destruction of life and limb by inviting or encouraging the use of railroad tracks by footmen. If the long and appalling inventory of injuries and deaths’ on railroad tracks is to be traced to bad doctrines formulated and announced by this bench, then indeed it has much to answer for. But learned counsel, we think, by inadvertence unsoundly argue in that behalf. It may well be doubted if a single person, within the memory of a man now alive, ever walked on a railroad track in Missouri, or refrained from walking there, solely because of any decision made by this or any court on any phase of [79]*79the law of negligence. Hitherto it has been the generally accepted notion that to hold railroad companies to strict inquest and just accountability when a child or adult is killed or maimed, conduces to care and caution in the management of death-dealing machines at places where people are permitted by the owners of such machines to be expected. But we have no imperative call at this late day to defend that doctrine. It has been criticised on one hand and defended on the other by text-writers. It is not alone the doctrine of this court, but it is a working rule in other appellate courts of entire respectability (Vide, 1 Shear. & Redf. on Neg. (5 Ed.), sec. 99, and notes; 2 ibid., sec. 484 and notes). It has been a favorite doctrine of this court for two or three generations.
So early as 1875, in Isabel v. Railroad, 60 Mo. l. c. 481, through Wagner, J., we said: “No doctrine is better established in this State than the principle it enunciates. Our decisions have been uniform, that although a person may be improperly or unlawfully on the track of a railroad, still that fact will not discharge the company or its employees from the observance of due care, and they have no right to run over and kill him, if they could have avoided the accident by the exercise of ordinary caution or watchfulness.”
In 1884, in Werner v. Railroad, 81 Mo. l. c. 374, Henry, J., speaking, said: “Counsel indulges in a criticism of the cases in which this court has held that if the negligence of a defendant which contributed directly to cause the injury, occurred after the danger in which the injured party had placed himself by his own negligence, was, or by the exercise of reasonable care, might have been discovered by the defendant, in time to have averted the injury, then defendant is liable, however gross the negligence of the injured party may have been in placing himself in such position of danger. Such is the well-established doctrine of this court. ’ ’
[80]*80Over and over again the doctrine has been assailed at the bar as illogical, and sustained by this bench as a logical and a humane rule producing wholesome results in the administration of justice. The decisions have not always employed the same line of reasoning in its support. So, cases may be found that depart from the doctrine (e. g., Holwerson v. Railroad, 157 Mo. 216), but this court has consistently either walked in the path of that rule or has sooner or later come back to that path if departed from. In the light of our later decisions holding a single and no uncertain voice in that behalf, to defend the rule by marshaling anew the reasons underlying it, is but to admit it needs defense, and we leave it with some observations, viz.: (1) It is too firmly rooted in the jurisprudence of this State to be overturned.by anything short of an act of the law-making power. (2) It may be admitted that it has been applied now and then where the maxim, The nearest cause and not a remote one should be attended to, would have been sufficient to solve the problem in hand. (3) And now and then it has been applied in such a way as to apparently squint at the doctrine of “comparative negligence” (a kind of negligence recognized by some courts and lately by an Act of Congress but not indorsed by the courts of Missouri). (4) Again, in some cases, the rule has been put on the idea of willfulness, recklessness or wantonness. This view of it possibly sprang from the proposition that contributory negligence is never a defense against a willful or wanton wrong (1 Shear, and Red. on Neg. [5 Ed.], sec. 64), but in our later cases the humanitarian rule is no longer put on the presence of willfulness or intentional wrong, but is reasoned out from the viewpoint of tender regard for life and limb and the doctrine is applied in cases grounded on negligence pure and simple. (5) Finally it will do to say that the humanitarian rule is somewhat of an exception to the general rule of law making [81]*81an injury that is the joint product of negligence of the tortfeasor and of the contributory negligence of the injured party not actionable. But none of these concessions or propositions militate against the soundness of the doctrine. The books are full of exceptions allowed to general rules. Such exceptions readily recur to scholars in jurisprudence and (when established) they become as important and just as the rule itself. To illustrate: take the exception to the general rule of the Statute of Frauds requiring contracts for the sale of real estate to be in writing. And, more in point, take the exception to the statutory rule that railway companies are liable for injuries .received by persons at public crossings where no whistle has been sounded or bell rung as imperatively ordained by statute. By judicial construction a main exception has been grafted on the stem of the statute, to the effect that the defense of contributory negligence applies to such cases in full vigor, although the statute limits the defendant to the right to show that a failure to give the statutory signals was “not the cause of such injuries.” Similarly, the defense of contributory negligence has been applied by judicial construction to actions arising on statutes requiring the owner of dangerous machinery to fence the same, and to mining laws for the protection of life. Many other examples might be given. In fact, exceptions are an ordinary incident to a general rule of law and are allowed so much significance that it may be said: Exceptions but declare the rule itself. Exceptio quoque regulam declarat. So an exception which confirms the law, expounds the law.
(b) It is argued that Fletcher drank himself drunk, in drunken oblivion put himself in peril by lying down on defendant’s track, that this drunken act of negligence was the proximate cause of his in-' juries, regardless of the humanity rule. Counsel have [82]*82diligently searched out and submitted cases sustaining their position. But this court has never so- held. Drunkenness excuses neither a crime nor a negligent act. So much is clear law. But at root a drunken man is as much entitled to life or limb as a sober man. In no system of ethics known to us has A any more right to negligently injure B when drunk than he would have to injure him when sober. Drunk or sober a man is a man and a brother in the law of negligénce.Would it not be a droll and anxious enlargement of the charter powers of defendant corporation to so write the law as to allow it to cut off the life or. leg of a toper by its negligent failure to use ordinary care towards him, and at one and the same time so write the law that under like circumstances it would be liable as a tortfeasor if he were sober? We take it that in right reason the drunkard is dealt with as if sober — no more, no less. He is held up on his part to the same high-water mark of duty and responsibility —so are those who-deal with him. The woeful list of sorrows and ills flowing from drunkenness is long enough and sad enough without adding new terrors by judicial construction. Therefore, the operatives of engines and cars, who see (or where, in instances the duty is raised to look, they might see) a person fast in a cattle-guard, or in a hole, or otherwise snared on a track, or down drunk, or otherwise apparently incapable of moving, are guilty of negligence in not making all prudent efforts to avoid a collision, and this regardless of such person’s disability. [Beach on Contributory Negligence, p. 302, and cases cited under note 5; 1 Thompson’s Com. on Law of Neg., sec. 341.]
In the Werner case, supra, Werner was drunk and down on the track. Bunyan was drunk (127 Mo. 12). The child, Mary Woods, was fast in a cattle-guard and up and down at intervals. [Woods v. Railroad, 188 Mo. 229.] Fearons, in Fearons v. Railroad, 180 Mo. 208, fell into a conduit with possibly only his head and [83]*83shoulders showing above the track, and it was held to be the duty of the motorman to see him and save him. Biggs was drunk and lying down outside of the rail with his left leg projecting over it. [Riggs v. Railroad, 120 Mo. App. 335.] In that case it was argued, as in this, that there was no duty to look out for him, but we refused to take that view of the law. If a person is down so close to the track as to be hurt by a passing train, and where, because of the shadows of night or some curve, or some obstruction to vision, his peril cannot be seen by the exercise of due care in watchfulness, in time to avoid injuries to him, as in such cases as Ayers v. Railroad, 190 Mo. 228, or in Trigg v. Railroad, 215 Mo. 521, and Riggs v. Railroad, supra, then a different situation is presented. But such cases are not this case; and for us to hold there is no duty on railroad companies to look for any persons except for those walking upright upon the track, at places where there is a duty to look and to see, would be stumblinglv narrow and sour exposition. If drunkards . are put outside the rule because down drunk, such holding would exclude from the humanitarian rule those falling in fits, or stricken down by violence, or the child creeping on the track.
(e) To convict the trial court of error in refusing the peremptory instruction, it is argue'd that this court has heretofore misjudged and misinterpreted that provision of section 1105, Revised Statutes 1899, reading: “If any person not connected with or employed upon the railroad1 shall walk upon the track or tracks thereof, except where the same shall be laid across or along a publicly-traveled road or street, or at any crossing*, as hereinbefore provided, and shall receive harm 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 such railroad, but not otherwise.” Counsel say that such statutory provis[84]*84ion requires a person not an employee to be held and taken as a trespasser in walking on the track — no matter whether he would be otherwise technically a trespasser or not. The last step in the evolution of the argument is, of course, that the railroad company owes no duty to look out for trespassers. That provision of written law was painstakingly construed and considered in Morgan v. Railroad, 159 Mo. 262. The conclusion reached was that, construed in the light of reason and our former adjudications, there was left remaining a duty to look out for persons on the track at places where by common custom, well established, and known to the railway company, there was such pronounced use of the track by pedestrians as caused their presence to be naturally expected. In other words, the statute made no innovation on the general rule in that regard, and that general rule of duty, and liability for breach of it, whether relating to trespassers or licensees or quasi licensees had long been recognized by this court before the Morgan case. Since its decision it has been consistently and persistently followed.
In a very late case, Ahnefeld v. Railroad, 212 Mo. 280, the present contention of learned counsel was considered and was disallowed on a full and exhaustive review of our decisions. "We can add nothing of value to what was said in those two cases, and, admitting ourselves instructed but not convinced by the scholarly briefs of counsel for appellant, we remain satisfied with our former decisions.
Other contentions are made under this head, but we deem them not meritorious. Having pursued the matter far, we announce our conclusion to be that the peremptory instruction was well refused.
II. Error is assigned in the giving and refusing of other instructions. They need no single consideration, because the rulings of the trial court thereon were [85]*85in line with, the reasoning and holding of paragraph I of this opinion. Accordingly, the assignment is disallowed.
III. Error is assigned in the form of the judgment. At the trial defendant confessed in open court that the administrator was entitled to recover the remnant of wages sued for in the second count, to-wit, $59.30'. No evidence went in on this item and it was not instructed on. The jury returned no verdict on it. But when the court came to render judgment it added the confessed sum to the verdict sum and rendered a general judgment for the total. Defendant did not call the trial court’s attention to this irregularity in its motion for a new trial, or in its motion in arrest. The matter does not affect the merits of the case to the size or weight of one mustard seed1. A judgment may as well he rendered on confession as on verdict found. It goes as a logical sequence for the amount due, he it established by confession or by trial. We have the right to eliminate the amount of wages and leave the judgment stand on the verdict alone, hut, as defendant neglected to present the matter to the trial court, we may not consider it here.
The point is disallowed to defendant.
IY. Finally, error is assigned for that the verdict is excessive. The point made is novel and under the new Damage Act. [Laws 1905, p. 135.] By that act, section 2864, Revised Statutes 1899, of the old Damage Act, was amended in sundry vital particulars — among others, in the statutory penalty for a death loss in conditions given. The amendment provides that, in case of a death, the corporation, individual or individuals liable for the same ‘ ‘ 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, at the discretion of [86]*86the jury, which may he sued for and recovered: First, by the husband or wife of the deceased,” etc.
The contention, as we grasp it, is that there was no evidence tending to show the value of Fletcher’s life, that his qualities as a man were not disclosed. That there were no facts in the case upon which the discretion of the jury could take hold, by way of mitigation or aggravation, so as to gauge the penalty on the sliding scale from two to ten thousand dollars as written in the amendment. That, therefore, decedent’s administrator was entitled to recover only the minimum amount of the statutory penalty, to-wit, $2000, and all above that sum must be taken as excess. This new act introducing legislative innovations of a far-reaching character, its exposition should be attended with judicial caution in order not to press its words too far and divert the law from its prescribed statutory channel. For, as said by Coke: “If a river swells beyond its banks, it loseth its own channel.” Neither ought the words be pressed too tightly, so as to squeeze the life out of the law. In one permissible view of the new statute (and the one most obvious) it is penal and nothing else. The law-makers said so. Rut when the whole statute is read and harmonized it might appear (by construction) that the minimum amount is left alone as nakedly and baldly penal, and that the discretion of the jury to go above that amount might be gauged on the theory of compensation, as pecuniary loss, or, if not that, as having regard to the aggravating or mitigating circumstances of the individual case. “The law,” says Dr. Johnson, “is the' result of human wisdom .acting on human experience for the benefit of the public.” This is a lay view of it. Technically, and at end, the law is what it is judicially construed to mean. In that view, the construction of a statute becomes part of it. Accordingly, we count it wise to reserve the question as to whether the statute involves only a penal, or both [87]*87a penal idea and one of compensation, or of aggravation or mitigation, since those large and vital questions are not briefed by learned counsel and should not be passed on finally without the illuminating aid of full'briefs.
We disallow the assignment and put our disallowance on the grounds: First, .that if the statute contemplates a theory of compensation then the jury had facts before them from which they could reasonably infer the worth of the man as a citizen; second, if the proper construction of the statute involves the notion that the jury should regard circumstances of aggravation or mitigation, attending the death of Fletcher, then such circumstances were fully exploited in the evidence; and, third (and mainly), we base our decision on the ground that the instruction on the measure of damages given for plaintiff was couched in the general language of the amendment. If, now, defendant thought itself entitled to a modification of that instruction so as to include specific and definite directions to the jury, it should have asked instructions on that behalf. This it did not do, and it cannot complain of mere non-direction (see Morgan v. Mulhall, 214 Mo. 451, and cases cited). Since writing the above the constitutionality of the law has been before Division One of the court in Young v. Railroad, 227 Mo. 307. See that case arguendo.
The premises all considered, the judgment should be affirmed. It is so ordered.
All concur, except Woodson, J., who dissents in an opinion filed.
On rehearing In Banc the divisional opinion of Lamm, J., was adopted by a majority of the court, Fox, C. J., Gantt, Valliant and Graves, JJ., concurring; Burgess, J., not sitting; Woodson, J., dissenting in an opinion filed. The judgment is accordingly affirmed.