have the right to presume that one walking upon the track will leave it in order to allow a train to pass, if they have knowledge of its approach. Under the circumstances in which these parties were placed, the immediate duty required of the engineer, when he saw that deceased was unaware of his peril, was to give a proper warning. This duty required such a signal as could have been heard and could not have been misunderstood; such a one as would arouse deceased from his apparent mental abstraction or indifference to a sense of his danger, and the necessity of action on his part to avoid it. That such a signal was given is not denied, and is established by the evidence of many witnesses, and is disputed by none. It was also the usual danger signal. It was heard all over the immediate neighborhood. One witness, called by plaintiff, who was some distance from the place of the accident, described it as a sharp whistle, such as is given for stock on the track, and that it could have been heard two or three miles. The engineer cannot be charged with negligence as to giving a signal, nor as to its character and sufficiency. er the train men used ordinary care to avoid the accident after they actually knew of the peril of the deceased, and, the facts showing that they did so, the judgment for the plaintiff was reversed by this court. The principles herein set forth were not in terms presented in that case, and hence were not expressly decided, but the relative duties of the railroad and persons using its tracks were so fully and clearly stated in that case by the learned and lamented Judge Macfarlane that what was said is extremely apposite to this case, and are so refreshingly wholesome reading that I adopt them and set them out again in full. That distinguished jurist said: "(1) That deceased had negligently placed himself in a position of danger is not controverted by plaintiff. Orainarily such contributory negligence would bar a recovery. But there is a well-recognized exception to the rule. The employés of a railroad corporation, in charge of a train, owe, even to a trespasser, the duty of care to avoid injuring him. Fiedler v. Railway Co., 107 Mo. 647, 18 S. W. 847. The ground of this action is a neglect to perform that duty. Under the cause of action stated in the petition, the original negligence of deceased in walking upon the track is impliedly admitted. His negligence in that particular is not, therefore, an issue in the case, as made by the pleadings. The right of recovery depends upon the conduct of the parties in the situation they occupied immediately preceding the collision. The question involved requires a determination of the respective duties of the engineer and deceased in the circumstances in which they were situated, and whether those duties were discharged. To determine these the situation and surroundings must be considered. The day was mild, for the season, and there was but a slight breeze in the air. The train was running through a farm, on a slightly ascending grade. There was neither noise nor objects to distract or attract the attention of either the engineering, then, that the engineer saw deceased as or deceased, except the noise of the train and the ringing of the engine bell. The train was equipped with a modern improvements intended for controlling it. The engineer had twenty years' experience, and was presumably skilled. The petition charges that the engineer was negligent, after seeing the dangerous position in which plaintiff's husband was situated, in failing to give a danger signal of the approach of the train. What was the duty of the engineer in respect to giving deceased warning, and when did that duty arise? It may be safely said, as a general rule, that the duty of care arises in all cases as soon as the perilous situation of the trespasser is discovered. The instinct of self-preservation, as well as common judgment, impels one on a railroad track to leave it on the approach of a train. This law of nature is universal with intelligent beings. From this universal law is evolved the legal principle that persons in charge of a train "(2) The next inquiry is whether the notice was timely. The engineer testified that he first saw deceased when about four hundred feet from him, and immediately gave the danger signal. If his testimony is true, then the charge of negligence in respect to giving the signal is met and refuted. There was no direct evidence that the engineer saw deceased sooner, nor is there a charge of negligence in failing to see. But the evidence shows that deceased was in full view of the engineer for about one-eighth of a mile, and from that circumstance, coupled with the duties of the engineer to his employer to keep a watch upon the track, a jury might infer that deceased was seen for more than four hundred feet. Rine v. Railroad Co., 100 Mo. 235, 12 S. W. 640. Assum soon as he came in sight, when did his duty of care begin? Deceased was bound to know, and in this case did in fact know, that a train was due behind him. It was his duty to keep a vigilant watch for it. Indeed, that duty is imposed upon all who go upon a railroad track. The engineer had the right to suppose when he first saw him that he would hear or see the train and leave the track. It was recently said by this court: 'Defendant, of course, had the right of way, and was not bound to anticipate that persons trespassing on the track would not step aside before a coming train.' Hyde v. Railway Co., 110 Mo. 279, 19 S. W. 483. In another case it was said: 'When plaintiff stepped on the track, it was the engineer's duty to warn him, and this he did. The engineer had a right to presume that an adult would at once step off the track and avoid danger. He was not required to stop his train until he saw plaintiff was in a position of danger or peril.' Reardon v. Railway Co., 114 Mo. 405, 21 S. W. 731. In that case the court says further: "The use of the steam brake immediately upon his entering upon the track would unquestionably have stopped the train, but whether it would after plaintiff had fallen and it became evident he was in peril was at least a debatable question.' From these cases, and many others that might be cited, it seems to be well settled that where no conditions intervene to confuse, or to prevent hearing a signal and knowing its object, it will be sufficient, if given in time for the trespasser to leave the track safely. The question then is, was the signal given in time to have allowed deceased opportunity to escape the danger? The engineer testified that the danger signal was sounded when the engine was about four hundred feet from deceased. Other evidence made the distance three hundred and forty feet. These are the maximum and minimum estimates. If the train was running twenty-five miles per hour, which was the estimated rate, it covered about thirty-six feet every second, or three hundred and sixty feet in ten seconds. If deceased walked at the rate of two and one-half miles per hour, he would travel about three feet in a second, and thirty feet in ten seconds. Five feet would have taken him out of danger. McDowell, a witness for plaintiff, testified that while working about his barn he heard the whistle, and, thinking some of his stock was in danger, he stepped around to a point from which he could see the train and deceased. It required about three steps in order to get the view. He saw deceased walking down the track as though he did not know the train was following. After he got in sight the engine whistled two more times, the last of which was just as deceased was struck. After he came in sight of deceased he took three or four steps before he was struck. Even according to the evidence of this witness, deceased must have walked fifteen or twenty feet after the danger signal 'was given. He had, therefore, ample time to have escaped the danger after the signal. The engineer was not, therefore, negligent in respect to his first duty on ascertaining that deceased was not aware of the approach of the train. "(3) The petition charges further that the engineer negligently failed and neglected to use the air brakes and other appliances ready and at hand for stopping the train. In other words, the charge is that the engineer was negligent in not stopping the train in time to avoid striking deceased. This duty of the engineer arose as soon as he knew, or by proper care ought to have known, that deceased did not regard the warning signal. The engineer, on this question, testified that after giving the signal, and observing that deceased did not heed it, he immediately put on the full force of the air brakes, reversed his engine, and did everything in his power to arrest the speed of the train and stop it, continuing at the same time to sound the alarm whistle. His evidence receives some corroboration from the trainmen and some other witnesses. There was no direct contradictory evidence. One of plaintiff's witnesses, who had been a locomotive engineer, testified that the engine was reversed between the first and second whistles, and the air brakes were on when the train stopped, but he did not know when the air was applied. The evidence tended to prove, though conflicting on the question, that the engine ran five hundred and sixty feet after deceased was struck. The evidence also tended to prove that the train could have been stopped in six or seven hundred feet. From these facts the further fact that everything was not done that could have been done to stop the train might be inferred. But that is not the question. The question is whether the train could have been stopped in time to have avoided the calamity. If it could not, and the collision was inevitable, unless deceased acted, then, though the engineer was negligent, it could not be attributed to defendant, as the proximate cause of the disaster. When such dire results occur in so brief a period of time, it is difficult to measure accurately either time or distance. Suppose the engineer was three hundred and fifty feet from deceased when his duty to warn him arose, and the train was running twenty-five miles per hour, or say thirty-five feet per second. The engineer sounded the whistle and observed its effect. Say that occupied only three seconds. It could scarcely have been less. The train had then run one hundred and five feet nearer to deceased. Take two seconds more for applying the brakes and reversing the engine, and the train moved seventy feet further before its motion could have been retarded. engine was then within one hundred and seventy-five feet of deceased. Suppose it ran five hundred and sixty feet after it struck deceased. The stop would have been made in seven hundred and thirty-five feet. It is perfectly clear that the life of plaintiff's husband could not have been saved by anything the engineer could possibly have done towards stopping the train; for, at most, he had only four hundred feet in which to do it. We must therefore conclude that no negligence on the part of defendant was shown. The "(4) This conclusion obviated the necessity of considering the contributory negligence of deceased after the signal was given. It was certainly his duty to leave the track immediately on hearing the signal, and not to depend upon the engineer to stop the train. If by reason of a neglect of that duty he was caught on the track, his contributory negligence would defeat his recovery, though the engineer was also guilty of negligence in not stopping in time to avoid the collision. The character of the signal was such that in the quietness of that afternoon, and the surroundings, we can but conclude that it was heard. The evidence also shows that deceased was struck within thirty-five feet of the point at which he would have left the track. It shows further that, after the signal was given, deceased changed his course from the center of the track, in a diagonal direction, towards the left rail, and when struck was outside of the rail. These facts show conclusively that the signal was heard by deceased. His subsequent conduct indicates that he miscalculated the distance it was from him, and thought he had time to reach the footpath by which he intended to leave the track, or that he had time to walk off deliberately. One or the other of these conclusions must be drawn. In either case there would be contributory negligence. We are of the opinion that the evidence shows no liability, and the judgment is reversed. All concur." This opinion was concurred in by Brace, P. J., and Barclay and Robinson, JJ. When the Chamberlain Case was decided in banc, the Sinclair Case was considered, and was followed and approved by the whole court. The majority of the court held that the insertion of Thompson's discovery clause in the instruction was not prejudicial error, under the facts in that case, because the evidence clearly showed that the trainmen did not exercise or dinary care to warn the deceased of his peril after they actually saw it, and further saw that he was unaware of his peril, and therefore a recovery by the plaintiff was affirmed by this court. But neither of these cases supports the doctrine of Thompson's discovery clause. In neither case was that doctrine approved. It was not present in the Sinclair Case, and in the Chamberlain Case the logic of the opinion of the court in banc is a condemnation of that doctrine, and an admission that it is not the true law. In my judgment, both of these cases can stand together, but in so far as they apply to this case they are sufficient authority for holding that the judgment in this case should be reversed, and by clear intendment are a renunciation and condemnation of the underlying want of reason and utter lack of mutuality of obligation and duty resting upon the respective parties-the railroad men and the person walking upon the track-which is expressed in Thompson's discovery clause. For the foregoing reasons, I am of opinion that the demurrer to the evidence should have been sustained, and therefore think the judgment should be reversed. 2. The instruction given for the plaintiff told the jury that if they found the defendant was negligent, and also found that the deceased was negligent, still they should find for the plaintiff, if they believed and found from the evidence that the defendant knew of the peril of the deceased, or by the exercise of ordinary care could have discovered his peril, in time to prevent the injury, and did not do so, unless they further believed and found from the evidence that the deceased knew of his peril in time to avoid the injury, and did not do so. This instruction is wrong, for these reasons: First, because it authorizes a verdict for the plaintiff unless both the trainmen and the deceased were wanton, when even the majority opinion holds that there is no element of wantonness in the case; second, because by employing the italicized words, "or by the exercise of ordinary care could have discovered his peril," in defining the defendant's liability, it mixes simple negligence with wantonness, and metes out the same punishment to the defendant, whether it was wanton or simply negligent, whereas in defining the liability of the deceased it limits his duty to wantonness, and entirely omits the element of his negligence, in that, while it says the plaintiff cannot recover if the deceased knew his peril in time to avoid the injury, it does not prohibit a recovery if the deceased, "by the exercise of ordinary care, could have discovered his peril" in time to avoid the injury. The same reason, logic, and law which would mix the negligence and wan tonness of the defendant should also mix the negligence and wantonness of the deceased. In my judgment, it is error to mix the two as to either the defendant or the deceased; but, if it is mixed as to one, it should, in common justice, be mixed as to the other, also. This is what Beach, Contrib. Neg. (3d Ed.) § 54, designated as "Thompson's Discovery Clause." The failure to exercise ordinary care to discover the peril of a person on a railroad track is simply negligence, and the failure of such a person to exercise ordinary care to discover his peril is contributory negligence; and a recovery by plaintiff under such circumstances is as much against the fundamental principles of law as if the negligence and contributory negligence had appeared upon the first analysis of the case, instead of after the case had been reduced by stages of reasoning or occurrence of events to its last or ultimate analysis. If this is not true, then some court or law writer or logician should tell why it is not true. No one has attempted to do so. The majority opinion in this case passes it over in silence. It is as certainly true as a demonstration in algebra that an instruction such as the one under consideration is equivalent to a peremptory instruction to the jury to find for the plaintiff; for it is conceded that the defendant was negligent, and that the plaintiff was guilty of contributory negligence. It is also conceded that neither party was guilty of wantonness, or, if they were, both were equally so guilty. Thus far the plaintiff's attorney could concede everything that the defendant's attorney was at liberty to urge upon the consideration of the jury. But the plaintiff's attorney could and would say to the jury that the plaintiff was still entitled to a verdict, not rendered invalid by a provision therein that it shall not operate to prevent the corporation from using or expending its moneys and assets in extending its works, since such provision only referred to money and personal assets which are not included in the mortgage. 3. A corporate trust deed is not rendered invalid by a provision that the mortgaged premises may be sold or exchanged by the corporation when it will not decrease the security, since such power does not invalidate the right to convey. because the court had instructed them that if, by the exercise of ordinary care, the defendant could have discovered the peril of the deceased in time to have avoided the injury, and did not do so, the plaintiff was entitled to a verdict, and, as the track was straight for about 1,300 feet, the trainmen could, and, if they had exercised ordinary care, would, have seen the deceased on the track, and could have seen that he was heedless of the approach of the train, and hence could have stopped the train in time to have avoided the injury, or, as the majority opinion puts it, could have sounded the alarm whistle often enough to bring the deceased to a realization of his peril in time to have avoided the accident. There is no reply the defendant could make to such an argument, except that by the exercise of ordinary care the deceased could have discovered his peril in time to avoid the acci-rectors, to be used for the purposes specified, dent, and did not do so; and such reply was not available to the defendant, because the instruction imposed no such duty upon the deceased, but, on the contrary, limited his obligation to getting off the track if he knew his peril. The result is, such an instruction is just as advantageous and satisfactory to a plaintiff's attorney in cases like this as a peremptory instruction for the plaintiff would be, and it might just as well be understood now as at any time whether this court intends to approve such a practice. The majority opinion gives effect to it, without so expressly committing the court to the doctrine. I cannot agree to it, even by implication, or permit it to pass in silence. For these reasons, I am constrained to dissent from the majority opinion. SHERWOOD, J., concurs herein. RAWLINGS v. NEW MEMPHIS GASLIGHT (Supreme Court of Tennessee. June 26, 1900.) 1. A trust deed signed by A., president, and B., secretary, but which has a corporate seal attached thereto, and which recites that the corporation caused its seal to be attached, and the deed to be signed by the president and secretary, is not the individual act of its officers, but is binding on the corporation, both at common law and under Shannon's Code, § 3679, which provides that an instrument executed by an agent in his own name shall be binding on the principal, where the instrument shows that it was intended to be executed in a representative capacity. 2. A corporate trust deed on real property is 4. Allegations in a bill to set aside corporate bonds as ultra vires will not be considered on appeal, where there was no evidence offered in support thereof at the trial. 5. Where a corporation borrows money by pledging its bonds as security therefor, the holder of the bonds is a bona fide holder for value. 6. Where the stockholders of a corporation authorize the issuance of bonds to retire a former bond issue, and to pay a debt for betterments and to construct further improvements, and provide by resolution that such bonds shall be subject to the control of the board of di the directors may pledge such bonds as security for existing and future indebtedness for the purposes contemplated in the resolution. 7. The act of the directors of a corporation in pledging its bonds to secure its future or pre-existing indebtedness is not ultra vires. 8. A pledge of the bonds of a solvent corporation by its directors to secure a pre-existing indebtedness due another corporation is not rendered invalid, in the absence of fraud, by the fact that a director of the former corporation is an officer of the latter. 9. A pledge of the bonds of a solvent corporation by its directors to secure a pre-existing indebtedness is not invalid, in the absence of fraud, for the reason that the creditor is a director of the corporation, since a director is not prohibited from dealing with the corporation, and may take security in his dealings therewith. 10. Where a corporation is solvent at the time of a pledge of its bonds by its directors, such act cannot be attacked on the ground that the corporate property is held in trust for its creditors. 11. Corporate bonds were pledged by the directors of a corporation to secure certain indebtedness while the corporation was solvent, and a number of the bonds came into the possession of several of the directors. Afterwards the panic of 1893 came on, and the mortgage was foreclosed on default of interest, but the directors had attempted to get the stockholders to take up the corporation bonds, and had attempted to sell the property. The mortgage was not foreclosed at the instance of the directors, nor did they take any part therein, but those holding bonds were among the purchasers, but only a small profit was realized at a resale of the property. Held not sufficient to justify setting the sale aside on the ground that the directors brought about the foreclosure for the purpose of defrauding the stockholders. 12. Where a first and second trust deed is given on corporate property, and the trustee takes possession under the second on default of interest and sells the property, the sale cannot be attacked on the ground that it would not have been necessary if the trustee had not diverted the income of the corporation to the payment of interest due under the first mortgage, since such income was properly so applied. 13. Where a director of a corporation, who is an accommodation indorser of its paper, acquires its bonds as security therefor, he may purchase the property at a sale under the trust deed by which the bonds are secured. 14. Where the property of a corporation is con sold at a foreclosure sale to its directors and certain other persons, but there is no spiracy between the purchasers to wrongfully bring about such sale, it will not be set aside for the participation of the directors in the purchase of the property, since, if the act of the directors is an injury to the stockholders, the directors are individually liable therefor. 15. Where a contract to furnish materials for an improvement is made prior to a mortgage on the property, but the materials are not furnished till after its registration, and no notice is given to the mortgagee, a mechanic's lien thereon is inferior to the mortgage. 16. Where suit is brought to set aside a sale of corporate property under a second trust deed, and the trustee named in the first trust deed, which is also attacked, is made a party thereto, and files a cross bill asking that his trust deed be decreed a valid lien, it is not error to dismiss such cross bill on dismissing the original bill, since the dismissal of the original bill is an adjudication on the questions raised by the cross bill. 17. Where suit is brought to set aside a sale of corporate property under a second trust deed, and the trustee named in the first trust deed, which is also attacked, is made a party thereto, his attorney is not entitled to a lien for his services on the dismissal of the original bill, since there is no fund in the possession of the court on which a lien may be fixed, or no parties against whom a judgment can be entered therefor. Appeal from chancery court, Shelby county; F. H. Heiskell, Chancellor. Suits by Mary Rawlings, by Hunt Bros., by the Laclede Fire-Brick Manufacturing Company, by Anne Prichett, and by the Christopher Simpson Architectural Iron Works against the New Memphis Gaslight Company and others. The suits were consolidated, and from a decree dismissing the complaints complainants appeal, and from a decree dismissing the cross bill of defendant S. P. Read he appeals. Affirmed. T. D. Young, Carroll, McKellar & Bullington, and Turley & Turley, for complainants. B. W. Hirsh, W. W. McDowell, T. K. Riddick, Scruggs & Rosebrough, and Metcalf & Metcalf, for defendants. BEARD, J. The Memphis Gaslight Company was a corporation organized under the laws of this state for the purpose of manufacturing and furnishing gas to the city and citizens of Memphis. On the 1st day of April, 1873, a trust deed conveying all of its property rights and franchises was made by the corporation to S. P. Read as trustee to secure the payment of $240,000 of its bonds, payable to bearer in the city of New York, each bond having attached interest coupons falling due semiannually. These bonds are still outstanding. For many years the company was very successful, paying large dividends to its stockholders, in addition to meeting the interest on its bonds; but in the course of time another gas company was organized in Memphis, and a fierce competition for patronage at once ensued. In order to compete with its rival, equipped with modern economic appliances, as well as to replace with new machinery that which, from the wear and tear of years, had degenerated, in 1891 and the early part of 1892 the Memphis Gaslight Company found it necessary to expend large sums of money for betterments. In making these a floating debt of about $135,000 was created, and yet it became apparent to all interested in the company that all needed improvements were not made, and to complete these at least $25,000 more would be required. This debt already existing taxed the credit of the company, and was a burden upon some of its directors, who had loaned their names to give additional strength to the paper of the corporation issued by it to carry on these improvements. In view of this condition, the stockholders convened, according to a call properly made, on the 30th of June, 1892, when it was by them resolved to issue new coupon bonds of the company to the amount of $400,000, to run for 30 years, secured by a mortgage on all the property of the company; all the details of the making and the issuance of these bonds to be left to the discretion of its board of directors. At a meeting of the board, on the 8th of July, 1892, in pursuance of the authority thus conferred, it was resolved that there should be issued 400 bonds, of the denomination of $1,000 each, to be dated July 1, 1892, payable to bearer in gold coin of the United States of standard fineness, 30 years after date, bearing interest at 6 per centum per annum, with coupons for such interest attached, payable July 1st and January 1st of each successive year, and to secure these that a trust deed conveying all of the franchises and property of the company should be executed to the Manhattan Savings Bank & Trust Company of Memphis as trustee, and that the trust deed should provide for foreclosure upon default in the payment of interest. At a meeting of the board on the 30th of July, 1892, it was resolved that of this issue of bonds only $160,000 should be immediately used, and a committee was appointed to set forth the needs of the company, and to urge upon its stockholders to come to its aid by purchasing these bonds. The balance of the issue ($240,000) was to remain under the control of the company, to be used alone in retiring those secured by the trust deed of 1873. The effort to sell the $160,000 of the bonds failed, save to a limited amount; so, under the authority of the board of directors, those not sold were used as collateral security for the paper of the company, which, as before stated, had been used to raise money for betterments. On some of this paper Napoleon Hill, T. R. Riddick, J. W. Bailey, R. D. Frayser, and N. M. Jones, directors of the company, were accommodation indorsers, and a part was outstanding without indorsers or other security. The notes indorsed by Hill, Riddick, and Bailey at maturity were taken up by them, and they received from the holder the bonds which had been pledged by the company for their security, or else each, taking a note for the amount of his payment from the company, at the same time received |