The foregoing is the substance of the evidence on the part of the plaintiff tending to show that the engineer or fireman saw the deceased in time to have averted the accident by the exercise of ordinary care. A witness, who was a passenger on the | to a clear track, and no cause to suspect that train, testified that he heard no whistle or the track would not be clear. Therefore it application of the air until they were on or is not a case where it can be said that the near the bridge; then he heard or felt the defendant is liable if the engineer and fireair applied, and the stop was quite sudden. man saw, or by the exercise of ordinary care The train stopped with the rear coach oppo- could have seen, the position of danger in site to the water tank. due time; but the defendant would be liable only if the men in charge of the engine actually saw the deceased in time to have averted the accident under the conditions and with the means at hand. We have quoted the defendant's evidence on this point, not for the purpose of weighing it against that of the plaintiff, but only to see how far, if at all, it aided the plaintiff's evidence in making out a case. The defendant's is the only direct evidence, however, to the effect that the engineer and fireman did see the deceased before the collision, but it is to the effect that, as soon as they saw him, they did everything in their power to save him, but it was too late. When they saw him they said they were about 150 yards distant, on a downgrade, going 35 miles an hour. One witness for the plaintiff testified that from the Lakeside crossing the engine could have been stopped on the trestle, which, according to the diagram, even counting to the extreme east end of the trestle, would be about 375 feet. But that testimony was not competent. The witness had never had anything to do with running an engine; had had no experience at all that rendered him qualified to give an opinion on that subject. The engineer and fireman, witnesses for defendant, testified that they did not see the deceased until they had passed out of the curve and come into the straight track; then they both saw him. The engineer's testimony was: "As I came around the curve to the Center Creek bridge I seen the man crossing the bridge on the speeder. I reach ed for the whistle cord with one hand and the brake valve with the other. At the time the man got at the end of the bridge he got off the speeder and got down the dump clear off the right of way, and, as soon as he stopped himself he ran back up and caught hold of the speeder and pulled one end of the speeder on the ties, and remained in that position until I struck him. It was only a second or two from the time the man stopped himself as he jumped down the embankment until he got back to his speeder." He said he was about 150 yards distant from the man when he first saw him, about 300 feet from the west end of the trestle. As soon as he saw him he used all the appliances at hand to stop the train; the track at the point was downgrade about 1 per cent. In his opinion the train, going as it was, could have been stopped in 600 or 700 feet, not less.. The fireman's testimony was to the same effect. At the close of the plaintiff's evidence, and again at the close of all the evidence, defendant asked an instruction to the effect that plaintiff was not entitled to recover, which was refused and exception saved. In the above statement we have omitted a great deal of evidence tending to show that the plaintiff's father was himself guilty of negligence that contributed to the accident, and this we have done because that is a fact conceded; at least it is not contradicted. The plaintiff's petition states a cause of action based on the humanitarian doctrine alone, and the instructions under which the cause was submitted to the jury were on that theory. The petition states that the servants of the defendant in charge of the engine saw the plaintiff's father in his position of peril in time to have saved him if they had used ordinary care, but that they negligently, willfully, and wantonly failed to use the appliances at hand to do so. This is not a case in which the defendant's servants were chargeable with the duty of being on the lookout for a person on the The other witness who testified that the train in question, under the conditions named, could be stopped within 200 feet was a man whose experience qualified him to express an opinion on that subject. Therefore his was competent testimony. Whilst evidence of that kind is in the nature of what we call "opinion evidence," yet it is something more than a mere opinion. When a man has by long experience in running and stopping trains observed the distance in which he has often under similar conditions stopped them, he knows as a fact in what distance it can ordinarily be stopped; conditions of course may vary, causing the stop to be more or less short or long of the space expected, and to that extent such testimony is a matter of opinion. This train was going 35 miles an hour on a downgrade of 1 per cent. If it could be stopped in 200 feet, the stop would be in less than four seconds of time. A jury cannot take judicial cognizance of the space within which a train under these circumstances could have been stopped, yet in weighing the opinion evidence they are bound to exercise their own common sense. They were not bound to believe it because the witness had so testified; and, if the jury in this instance had discarded the opinion of this witness as unreasonable, they would have been in the lawful exercise of their prerogative in so doing. That was all the part of the plaintiff tending to show that the train could have been stopped sooner than it was. The testimony on the part of the defendant, however, tends to show that the train could have been stopped within 600 or 700 feet, and that looks reasonable. Now let us see within what distance it was stopped. From the point of the curve nearest to the bridge to the water tank was 846 feet; the evidence conflicts as to how far the train ran beyond the water tank before it stopped; plaintiff's evidence tends to show that the point of collision was about 100 feet east of the water tank; the engineer said it was not over 20 or 25 feet, and that when the train stopped the rear coach was just opposite the point where the deceased lay; one of plaintiff's witnesses makes that statement also, but another one said it ran a quarter of a mile beyond the tank and backed to the place of the accident. The train was estimated to be 120 or 200 feet long; there were two passenger coaches, a baggage car, the tender, and the engine. Taking the engineer's estimate, the engine ran at least 150 feet beyond the water tank. That would make the whole distance the engine ran from the point of the curve until it stopped 996 feet. Taking the plaintiff's witness, who estimated that the train ran a quarter of a mile beyond the tank and backed to the scene of the accident, even if we discount his estimate 50 per cent. or more, the train ran considerably over 1,000 feet from the point where the man came into view before it stopped. The testimony of the passenger who said the air was not applied until the train was on the bridge, and that the stop was quite sudden, is also to be considered. The engineer testified that he realized the man's danger as soon as he saw him, but we need no testimony to prove that a man on a bridge in front of a fast-coming train is in peril. It is true, as insisted by appellant, that the testimony of the engineer and fireman, to the effect that the man had gotten off the velocipede and down the embankment, where he was safe, and ran back again in face of the engine, then very near him, is uncontradicted, but the court could not assume that that testimony was true. If the fact was as so testified, it was a complete defense to the cause of action stated in the petition, but whether it was so or not was a question for the jury, and it was given to them to say. Under this condition of the evidence the court could not have done otherwise than submit the case to the jury. 3. The first instruction given at the request of the plaintiff was as follows: "The court instructs the jury that, if you believe from the evidence in this case that Pansy Middleton was at the time of her father's death the only minor child of Lewis Middleton, deceased; that no wife survived him; cific Railway Company owned the line of railway between Carthage and Joplin mentioned in evidence, and that the plaintiff's father was at that time in the employ of said railway company as section hand, and as such was, at the time of the accident complained of, engaged in inspecting the tracks on that part of said railroad where the accident occurred, going east over said track on a railroad velocipede commonly called a 'speeder,' and that about 8 o'clock in the forenoon of that day, while plaintiff's father was engaged in the line of his duty inspecting said track on said speeder, a passenger train, composed of a locomotive and train of cars operated by the St. Louis, Iron Mountain & Southern Railway Company, over and upon the tracks of the Missouri Pacific Railway Company, approached said Middleton from the west, and that at the point of the accident the track was straight, with nothing intervening to obstruct the view of the trainmen for some distance, and that said Middleton became in great danger of being run over and killed by said train, that both the said engineer and fireman saw him from the time the train was about 1,200 feet away until he was struck and killed, and knew that he was unaware of the near and dangerous approach of said train, and that the engineeer became aware of Middleton's perilous position on said track in time to have enabled him, with the exercise of ordinary care, to have prevented the accident and avoided running the locomotive against him, by stopping or placing the train under control, or sounding the usual danger signals, and that said engineer failed to use the appliances at hand to stop or place said train under control, or to sound said danger signal, but ran the locomotive against said Middleton and killed him, and if you further believe from the evidence that the St. Louis, Iron Mountain & Southern Railway Company was authorized or permitted by the Missouri Pacific Railway Company to operate the train in question upon the tracks of the latter company at a point where the accident occurred, then the plaintiff is entitled to a verdict at your hands against the St. Louis, Iron Mountain & Southern Railway Company" That instruction assumes, or at least authorizes the jury to find, that the plaintiff's father at the time of the accident was on the track in the due performance of his duty, from which an inference might improperly be drawn that he was where his duty then called him, where he had a right to be, and therefore was not negligent. If that was not the inference intended to be drawn, then the fact was wholly irrelevant. It was immaterial, under the theory on which the case was submitted to the jury, whether he was there in the line of his duty or as a trespasser. The defendant would have owed a mere trespasser, under the evidence in this sound the whistle to warn him. There was no evidence that the engineer or fireman knew that the deceased was unaware of the near approach of the train, or that the sounding of the whistle would have done any good. When a man is seen heedlessly walking along a well-beaten footpath inside the track, in front of an approaching train, when it is apparent that he could easily step aside and be out of danger, the situation suggests that probably he is unaware of his peril. Under those circumstances the duty should devolve on the engineer to sound the whistle to give him warning. But in this case the man was on the bridge when they first saw him; it was impossible for him to escape except to beat the train across, where he could jump to the ground. This instruction authorizes a verdict for the plaintiff for the failure of the engineer to sound the whistle; that is, it authorizes a verdict for the plaintiff if the engineer either failed to use ordinary care to stop the engine or to sound the danger signal. We cannot know from this verdict whether the jury found for the plaintiff on the ground that the engineer failed to stop as soon as he could or that they based the verdict on the fact that he failed to sound the whistle. There is nothing in the evidence in this case to indicate that the sounding of the whistle would have done any good. In fact the plaintiff's expert witness, the railroad locomotive engineer of 16 years' experience, said that in such an emergency he would not apply the whistle. He said: "What's the use going to whistle? You better try to stop without bothering the whistle." In that respect this case is unlike Heinzeman v. Railroad, 182 Mo. 611, 81 S. W. 1134, or Reyburn v. Railroad, 187 Mo. 565, 86 S. W. 174, or Eppstein v. Railroad, 197 Mo. 720, 94 S. W. 967. In either of those cases it seemed that if the engineer had sounded the whistle, the life would have been saved. But nothing so appears in this case, and it was error to instruct the jury that they could find for the plaintiff if they should find that the whistle was not sounded. Nothing would have saved the life of this man, so far as we can judge from the evidence, except the stopping of the train. It was error to have given that instruction. The same error as to the sounding of the whistle runs through the second instruction. that is, not to injure him after the engineer | the near approach of the train, and failed to saw him and realized his danger if by the exercise of ordinary care it could avoid doing so. If that part of this instruction was intended or was liable to authorize the jury to find that the plaintiff's father was not guilty of negligence in inspecting the track under the circumstances shown in the evidence, then it was error, because there was no evidence that authorized such a conclusion; the evidence showed he was negligent. There was evidence tending to show that he was a section hand, and that it was his duty at times to inspect the track, and a witness for the plaintiff testified that at the time of the accident he seemed to be inspecting the track; but the plaintiff's evidence also showed that he knew this train was coming. It was a regular passenger train on its schedule time. He stood by the track, according to plaintiff's chief witness, apparently listening for the train. The witness heard it, and the deceased must have heard it. Then the deceased put the speeder on the track and started down the road as if to beat the train across the bridge. The evidence was that he was forbidden to ride on a velocipede in going over his inspection route, and to that extent he was on this occasion violating his orders. Perhaps, if he had not provided himself with the velocipede, he would not have undertaken to speed down the road in front of a train that he knew was coming, but we do not attach any importance to that fact. It only is an item going to prove an immaterial fact, that is, that the deceased was guilty of contributory negligence. His duty did not call him to go on a long trestle and bridge so close to a coming train as to endanger his life. Therefore the mere fact that he was there inspecting the road did not authorize the jury to find that he was there in the line of his duty. It makes no difference, under the only theory on which the plaintiff's cause of action rests, whether the deceased was, at the time, in the line of his duty or was a trespasser; but the instruction authorizing the jury to take into consideration the fact that he was there in the due discharge of his duty throws into the scales weighing the evidence an item that should not be considered, a fact that tends to enlist the sympathy of the jury and prejudice the defendants. The jury was authorized by that instruction to find that the deceased was wholly in the right and the defendant wholly in the wrong. Perhaps, if that were the only error in the instruction, it might be passed over on the idea that it was harmless, because it authorized a finding of an immaterial fact; but it was not the only error. There is another hypothesis in the instruction that should not have been submitted. It authorizes the jury to find that the engineer and fireman, not only saw the peril, but al 4. At the request of the defendant, the court gave 5 instructions, and refused 16 others. We do not deem it necessary to discuss each one of those 16 refused instructions; it is sufficient to say that all that was good in them was contained in the 5 given, and what was not so contained was not the law. Therefore the instructions were properly refused. Some of the refused instructions related to the measure of damages, and were in that respect predicated on the propo had interposed counterclaims, the surviving partner could not, after judgment against him, urge that there were no claims pending in the probate court for determination. see Estoppel, [Ed. Note.-For other cases, Cent. Dig. § 8; Dec. Dig. § 5.*] 2. EXECUTORS AND ADMINISTRATORS (§ 250*)— ALLOWANCE OF CLAIMS - JURISDICTION OF COURT. Under Rev. St. 1899, §§ 192–194, 204 (Ann. ALLOWANCE OF CLAIMS - JURISDICTION OF ing section 2864, was unconstitutional. Oth-1 cedent and the firm estate, to which the estates ers required the jury to find that, unless the conduct of the engineer and fireman was "wanton, willful, and reckless," the verdict should be for the defendant. We do not recognize degrees of negligence; and, whilst the terms "wanton, willful, and reckless" are sometimes used in characterizing conduct, yet, after all is said, the law applies only the word "negligent." Negligence is a failure to perform a duty. The law recognizes degrees in care, very high care, and ordinary care, but the failure to exercise the highest degree of care required is only negligence, whilst failure to exercise ordinary care is also negligence, neither more nor less. Liability attaches from the failure to exercise the care required by the law-negligencebut when the liability is established, the character of the defendant's conduct, whether merely inattentive, or willful, wanton, or reckless, is a fact that may be sometimes considered in assessing the damages. If it be a case in which the damages as for compensation to the person injured be in question, the jury after assessing compensatory damages may, in a proper case, look into the character of defendant's conduct to see if punitive damages should also be awarded. In the case at bar, however, the damages are not given as compensation to the party aggrieved, but as a penalty which the law prescribes for the negligent killing of a human being; it is all penal in its character, and in fixing the penalty the jury have a right to consider the conduct of the negligent party beyond the mere finding that he was negligent. They may consider whether the conduct which resulted in the catastrophe arose from mere inattention, or was willful, wanton, or reckless. That is what the jury does in assessing the punishment for a crime, and it is what the amendment of 1905 to section 2864 authorizes the jury to do in assessing the amount of the penalty under that section of the statute. For the errors in the plaintiff's instructions above pointed out, the judgment is reversed, and the cause remanded to the circuit court to be proceeded with according to law. All concur. In re JARBOE'S ESTATE. In re M. W. (Supreme Court of Missouri. March 17, 1910. 1. ESTOPPEL (8 5*)-ALLOWANCE OF CLAIMSADMISSIONS-EFFECT. Where the administrator of a deceased partner and of the firm and the surviving partner entered into a contract filed in the probate court, which stipulated that the surviving partner had filed claims against the individual estate of de Where claimants against the estates of a deceased partner and of the firm, and the administrator of the estates, who filed counterclaims, waived formal notice, and by writing entered their appearance in the probate court for the adjustment of the claims and counterclaims, the probate court acquired jurisdiction of the parties. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 893; Dec. Dig. § 250.*] 4. EXECUTORS AND ADMINISTRATORS (§ 246*)— ALLOWANCE AGREEMENT. REFERENCE OF CLAIMS Where claims against the estate of a deceased partner and the firm estate, and the administrator of the estates, entered their appearances in the probate court for an adjustment of the claims and counterclaims pending in court, and agreed to a reference by authorizing the court to name an attorney to determine and adjudicate the claims, and agreed that the probate court the right of appeal to be heard on the evishould approve such report, each party reserving dence and facts heard and found by the referee, the parties conferred on the probate court the power to appoint an attorney as referee to adties could not thereafter object to such referjust the claims and counterclaims, and the parence, and a judgment when entered on the report of the referee was equivalent to a judgment by confession. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 875, 887; Dec. Dig. § 246.*] 5. REFERENCE (§ 4*) - CONSENT REFERENCE POWER OF COURT TO REFER. The power of the court, with the consent of the parties, to refer a case pending before it is incident to judicial administration, where the right exists to ascertain the facts, as well as to pronounce the law, and any issue in any pending action may be referred by consent of the parties, though generally reference cannot extend to matters outside of the suit. [Ed. Note. For other cases, see Reference, Cent. Dig. § 5; Dec. Dig. § 4.*] 6. EXECUTORS AND ADMINISTRATORS (§ 246*)— ALLOWANCE OF CLAIMS-REFERENCE. An executor or administrator may submit to arbitration claims against the estate without special authority from the probate court, though at common law he acts at his peril, and where the award on his counterclaim is less than would have been obtained by suit at law, he may [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 873; Dec. Dig. $246.*] 7. REFERENCE (§ 24*)—REFERENCE BY CONSENT -REVOCATION. Where a consent reference is had by an order or rule of court, neither party may revoke the reference, nor his consent thereto. [Ed. Note.-For other cases, see Reference, Cent. Dig. § 40; Dec. Dig. § 24.*] & REFERENCE (§ 33*) — REFERENCE BY CONSENT-ESTOppel. Where parties in proceedings in the probate court for the adjustment of claims agreed to a reference and appeared before the referee, they could not revoke the reference, and they were estopped from insisting that the case was not referable, and the court did not err in rendering judgment on the reference. be liable, but his agreement to arbitrate is nev-copartnership terminated by the death of M. ertheless good. W. Jarboe. M. W. Jarboe left as his heirs his widow and three children; i. e., O. M. Jarboe, H. M. Jarboe, and Jessie Van Trump. The widow qualified as administrator of both the partnership and individual estates. She served but a short time when she died, and O. M. Jarboe, H. M. Jarboe, and R. W. Van Trump, husband of Jessie Van Trump, qualified as administrators d. b. n. of both estates. For reasons not clearly appearing in the record, but easily surmised, this administration was of but short duration. Their letters were revoked, and Ralph F. Lozier was appointed and qualified as administrator d. b. n. of both estates. Just how the several probate orders were made does not appear of record, but from start to finish it seems that there was a desire to keep the administration of the two estates in the same hands. After Mr. Lozier's appointment, all the parties interested, on August 10, 1905, entered into a certain written agreement, which we set out in full because of the admissions made therein, as well as for the further reason that it forms the sole basis for appellant's contentions in this court. This agreement was filed in the probate court of Carroll county, and below will be found the court entry containing the agreement: [Ed. Note.-For other cases, see Reference, Cent. Dig. 60; Dec. Dig. § 33.*] 9. EXECUTORS AND ADMINISTRATORS (§ 256*)ALLOWANCE OF CLAIMS JUDGMENT — -AP PEAL. Where the probate court rendered a judgment adjusting the claims against the estate of a deceased partner and the firm estate, under an agreement authorizing the rendition of a judgment subject to the right to appeal to the circuit court on the evidence taken before the referee appointed by the probate court, the parties on appeal to the circuit court were bound by the agreement, and the circuit court must dispose of the case on the evidence taken before the referee. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 910; Dec. Dig. § 256.*] 10. COURTS (§ 202*)—Probate COURTS-JURIS DICTION. Probate courts, though courts of statutory power, may in the exercise of the powers granted resort to the common law and equitable rules in the disposition of matters before them. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 480; Dec. Dig. § 202.*] Valliant, C. J., and Fox, J., dissenting. "In the probate court of said county, on the 10th day of August, 1905, the following, among other proceedings were had, viz.: In the Matter of the Estate of M. W. Jarboe, Deceased. In the Matter of the Partnership Estate of M. W. Jarboe & Son. Comes now the administrator de bonis non, Ralph F. Lozier, and also comes O. M. Jarboe, H. M. Jarboe, and R. W. Van Trump, in person and by their attorneys, all of whom enter In Banc. Appeal from Circuit Court, Car- their appearance and waive notice of the roll County; Jno. P. Butler, Judge. Proceeding for the settlement of claims presented against the estate of M. W. Jarboe, deceased, and against the firm estate of which decedent was a partner, in which counterclaims were presented. From a judgment against O. M. Jarboe, a claimant, he appeals. Affirmed. Peak & Strother, for appellant. Conkling & Rea and Morris & Atwood, for respond ents. GRAVES, J. This cause reaches this court from an appeal taken by O. M. Jarboe from a judgment entered against him by the circuit court of Carroll county. The cause originated in the probate court of said county, and from a judgment there the said O. M. Jarboe had appealed to the circuit court. Pertinent record facts and history of the case are as follows: M. W. Jarboe and O. M. Jarboe were partners in the milling business from 1891 to 1904, at which time the Al claims here in court filed. Comes now R. "Whereas, an administration of the indi |