c32:No. 1,579

McCORMICK, Circuit Judge
(dissenting). The eminent judge before whom this case was tried in the Circuit Court had presided in that court on the trial of the Turnbull Case, and he has placed on record his “reasons for refusing new trial” in this case. It seems to me that these reasons have not been duly considered-by this court, and I therefore set them out in full as stated by that distinguished juage as follows:
“The court’s rulings at the trial, complained of by the defendant company, were, in view of the facts in this case, correct and in strict conformity with the doctrine set out in the opinion of the Circuit Court of Appeals for this circuit, in the case of Turnbull v. N. O. & C. R. R. Co., 120 Fed. 787, 57 C. C. A. 151. It was there plainly held, on a full and careful review of 'the authorities, that, notwithstanding the old rule as to contributory negligence, a plaintiff who is guilty of the want of ordinary care contributing to his injury may still recover from the defendant, if the defendant might nevertheless have avoided the injury by the exercise of ordinary care on his part; and that when the defendant i.s driving an instrument of danger, such as a railway train, or is doing something of such a nature that, unless extreme caution is used, it is likely to lead to mischief, the law conforms to the dictates of humanity, and enforces the plain obligation or moral duty to keep constant lookout and to exercise unremitting diligence. In the Turnbull Case it was also plainly held that the defendant operating a dangerous instrument (an electric street car, in that case) was responsible notwithstanding the defense of contributory negligence, although the defendant’s servant did not in fact discover the danger to the plaintiff’s child in time to avoid injuring him, provided he could have discovered the danger in time by the exercise of reasonable care. In fact, this was t-he crucial point in the case, the trial judge having conceded and charged that if the danger was discovered in time by the' defendant’s servant, the plaintiff could recover notwithstanding contributory negligence. The Court of Appeals distinctly held that the defendant was liable, regardless of the defense of contributory negligence, if tbe defendant’s servant, for whom it was responsible, ought to have discovered the danger in time and did not do so.
“It was argued at the trial of this cause on behalf of the defendant railroad company that the Turnbull Case is not authority in this case, because it did not deal with an accident occurring on the private right of way of a steam railroad company where persons, as it was claimed, are trespassers, but that the Turnbull Case dealt with an accident on the tracks of a street railway, in the public streets of a city, where the injured person was not a trespasser. But it is unquestionably clear that the Turnbull Case made no such distinction. All the propositions therein are stated broadly and without restrietion. In the Turnbull Case, the appellate court approved tfie case of McClanahan v. V., S. & P. R. R., 111 La. Ann. 782, 35 South. 902, involving an accidental killing on tlie defendant’s right of way, the facts of that case being, in my opinion, much weaker against the defendant than the facts in this case. In the McClanahan Case, McClanahan was lying across the railroad track, intoxicated. The train was running front end forward. It had a lookout, the engineer, who discovered McClanahan, tint not quite in time, and who made all reasonable efforts to save him. It was held that McClanahan was not a trespasser, and that his heir’s could recover.
“As to tlie suggestion of defendant’s counsel that the Turnbull Case did not in fact present the question of contributory negligence, because it involved a child who -was not in law chargeable with negligence and not an adult, as in this case, it may he said that the opinion in that ease, while stating that the ‘last chance’ rule ‘especially arises in favor of children, the aged and infirm,’ does not in any way limit or restrict the doctrine to such persons. The entire reasoning of the opinion plainly applies to all persons. Saying that the rule applies especially to certain persons cannot, by any process of logical reasoning, be understood to mean that it applies only and exclusively to those persons. The injured person in tlie Turnbull Case was a child over eight years old, bright and intelligent, and there is not even an intimitation by the Court of Appeals that, as matter of law, lie was not chargeable with negligence. Tlie action was twofold. The father sued as the child’s heir for the child’s suffering; and the father also sued for Hie injury caused to himself iiy the death of Ills child. As it was proven that the child died instantly, the case failed on the proof as to the first cause of action and, therefore, the child’s imp ligenee, which concerned only that part of the case, became immaterial. However, the court submitted the first cause of action to tlie jury, leaving them to pass on the question of contributory negligence vel non of the child, with proper instructions as to the measure of care to be applied to a child. The second cause-of action (that is, the father’s personal claim for damages) was also submitted to the jury, leaving them to pass on the question of eontributorv negligence vel non of the grandfather of the child, wiio was in charge of the child at the moment of the accident. This involved no question of imputed negligence. Lor it is not to he doubted, I believe, that a father suing for damages for his own benefit, because of his child’s death, is chargeable with his (the father’s) own and his agent’s negligence contributing to the death. The grandfather, as a witness for the child’s father, testified that holding tlie child hr the hand, ho walked up to the railroad track, looked in the direction in which the car came, saw no car, though his eyesight was good and there were no obstacles to prevent him from seeing, and yet, that instantly upon his stepping on the track, he was knocked down by a car and the clrld killed by it. The entire matter on both causes of action was submitted to the jury.
“Ry thus referring to the facts in the Turnbull Case, it is plainly shown that even though all the evidence was not lief ore the Court of Appeals, the contentions in this case that the Turnbull Case, is not apn’icablc are without force, and that as in that case it was held that tlie trial court comm ¡tied reversible error in refusing to charge that the father could recover notwithstanding the defense of contributory negligence, even if the motonoer did not discover the danger of the child in time to avoid the accident, provided the motoneer ought to have discovered the danger in time—then, it cannot he doubted that, in the present case, in which tlie facts are so much stronger against the defendant, it was tlie unmistakable dutv of tiie court to instruct tlie jurv in accordance with the views of the Appellate Court, to which this court does ahvavs unreservedly conform. This canse, as already stated, is far stronger against the defendant than were the Turnbull Case and the Mc-Clanahan Case. In this case, tlie train met the plaintiff and then almost immediately backed down on him without boll or whistle or other signal and ran him down in davlight, one or two hundred yards from the depot and village. That the defendant was guilty of the grossest negligence cannot, it appears to me, be doubted. The negligence is, I take it, practically admitted by the state of the evidence. And that the exercise on the defendant’s part of the most ordinary care and prudence would have prevented the accident is obvious. Plaintiff had just met the train. If the train, running front end forward, had. a lookout in front, he must have seen that plaintiff was using •the right of way, and he must have known that by immediately backing he would endanger the plaintiff. If the train had no lookout when it first met plaintiff, then defendant was doubly guilty in running trains without lookouts, both forward and backward, and especially so near a depot and village. ' Even if the question of the plaintiff’s contributory negligence is, under the circumstances, to be considered, there was proof from which the jury was fully warranted in finding that he was not negligent. The jury may have found that it was not contributory negligence on plaintiff’s part, under the circumstances, to fail to foresee that the train would or might almost immediately back down on him without bell or whistle or other warning, and the jury may have also found that the mere rumbling of the train was not necessarily an indication to him, under the circumstances, that the train was backing down. At that short distance, the rumbling did not indicate any more the backing down of the train than its continued receding. An attempt was made by the defendant to show that the plaintiff was intoxicated. If he was, that fact would only bring his case into closer analogy to the McClanahan Case.”
After carefully re-examining our decision in the Turnbull Case, and fully considering the case now before us, I concur in the views expressed by Judge Parlange as given above, and hence must dissent from the decision and opinion announced herein by my Brethren.

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