This was an action by R. D. Stamps, as administrator of the estate of S. W. Kirby, to recover damages, compensatory and exemplary, for his death, against appellee railroad company. The trial resulted in verdict and judgment for $500 compensatory damages for the benefit of the estate, and $2,500 exemplary damages, and the railroad company has appealed.
S. W. Kirby was assistant watchman on the appellant’s bridge over White River, near Augusta. The bridge is a drawbridge, and it was the duty of the watchman and assistant watchman to open the draw for boats when they received signals from them. Boats were given precedence over trains unless the train was too close to be stopped. It was the custom and duty of the watchman, when he received a boat signal, and no train then being on hand, to put out red signal flags at either end of the bridge, one hundred to one hundred and fifty feet away, before opening the draw. These flags called for the train to stop. It was the duty and custom of the watchman to go to the end of the draw when the train approached and there personally signal a stop. There was a signal post about a thousand feet west of the bridge at which the engineers were to give notice of their approach and slow down the speed of their trains and get them under control. There was another post called the stop post, about 150 feet west of the bridge, and trains were to stop at that post unless they received the proper signal to proceed across the bridge.
The draw span of the bridge is 270 feet long — 135 feet from the middle pier to either end — and the bridge proper extends 35 or 40 feet west of the end of the draw span, and then commences the approach to the bridge, which, on the west side, is over a thousand feet in length.
*244On the 26th of December, 1905, Mr. Kirby was in charge of the bridge, and about the middle of the afternoon he received a signal from a boat to open the drawbridge, and he proceeded to do so, but did not place any flags at either end of the bridge. He unlocked the west end, and this caused the rails on the draw to be raised above the rails with which they were connected when the draw was closed. The east end had not been unlocked.
A freight train whistled from the west when at a distance variously estimated from 1,200 to 2,000 feet from the bridge. Kirby responded to this signal, but when and where was the controversy. That he was caught by the engine between the west end and the center of the bridge, as he was running back from the west end, cast into the river and drowned are facts established. It was some two months before his body was recovered.
There were four eye witnesses besides the engineer and fireman; three of these were introduced by the appellee, and one by appellant. They all say that Kirby was unlocking the draw when the train whistled, and that he at once went to the west end of the draw with his signal flag; was there waving to the train when it came in sight around the curve, a distance of not less than 800 feet, and usually estimated at one thousand or more.
The engineer and fireman say that Kirby was not at the west end of the bridge when the train came in sight; that the first time he appeared was when the train was near the stop sign, some 200 or 300 feet away, when he began signalling from near the center of the bridge. Then the engineer attempted to stop; put on the - emergency brake and sanded the track (the steam had already been cut off) ; and that was all that could have been done to bring the train to a stop. The engineer says that, owing to the curve and grade at that point, it was very inconvenient to stop long trains just before reaching the bridge, and that the custom had grown up among engineers of getting their trains under control when about 1,200 feet away and watching for the signals on the track as to the bridge being clear, and, if it was clear, to proceed without pause so as to make the curve and grade. If the signal flags were out, they could see them in time to' come to the necessary stop. That in this instance he had his engine under control at that point, and looked *245out where the flag should have been, and, not seeing it, assumed that the bridge was clear, and released his brakes and went ahead. That, when Kirby did appear upon the bridge, he could not regain control of the train at once because, having just released the brake, the air was out of it, and prevented his getting the train under immediate control; he ran on the bridge and, striking the upraised track on the draw, the locomotive and one or two cars were derailed. The bridge was considerably torn up by the derailment. The train stopped a little short of the middle of the bridge.
The decided weight of the testimony is that the absence of the flags at the distance of 100 or 150 feet from the bridge had nothing to do with the action of the train', for the witnesses say that Kirby was in plain sight, waving his flag before the train came in view. It was indisputably established that a man standing at the west end of the draw where they say Kirby stood could be seen further down the track than a stationary signal flag posted at the usual place. This was admitted by the engineer himself. The irreconcilable conflict in the evidence is as to Kirby being at this point when the train came in sight. Other facts will be stated as the different issues are discussed.
1. A question preliminary to the merits of the cause of action is presented as to the qualification of certain jurors. These jurors stated that they had formed opinions regarding the case, and that it would require evidence to remove those opinions; but' they stated that their opinions were based upon common reports and rumors, and not from personal knowledge, nor derived from witnesses, and these opinions would not preclude them from considering the case fairly. This statement from Sullins v. State, 79 Ark. 127, is applicable here: “We attach little importance to their (jurors’) statements that it would take evidence to remove the opinions held by them; for, if one man has an opinion of any kind, it is natural that it should take evidence of some kind to remove it. That would be true of an opinion formed from rumor merely, but our statute expressly provides that such an opinion shall be no ground for challenge.”
2. It is insisted that Kirby was guilty of contributory negligence in two particulars. First, in failing to put out a danger flag before attempting -to open the draw.
*246The court in the tenth instruction, given at the instance of the appellant, which is set out in the footnote,* submitted this question to the jury; and file finding of the jury that his failure in this respect did not contribute to the accident 'can not be disturbed, and is responsive to the preponderance of the evidence.
The second ground of the alleged contributory negligence is that he coulcl have stepped out of the way of the train and got upon a floor beam. These floor beams are about 20 feet apart, and cross the girders which run parallel with the track, and they are for the purpose of riveting the bridge together. They are 12 or 14 inches wide, and from the rail to the upright post of the superstructure the distance is five feet and a half. An engine or car extends about two feet and a half over the rail, thus leaving a space of about three feet by 12 or 14 inches for a person to stand on and^be clear of a passing train. Some of the witnesses thought Kirby might have escaped danger by getting out on one of these floor beams, while others regarded it as a risky venture. There was a platform about fifty or sixty feet back from the west end of the draw. This was about 18 feet lengthwise with the track, and sixteen feet wide. It was called a “jigger.” And there was a little house in the center of the draw span, over the middle pier. Kirby was evidently trying to reach one of these places as he ran from the approaching train.
Where there are two courses left open to a person in the face of imminent danger, and he chooses on the spur of the moment the one which is really the more dangerous, he can not be held as a matter of law to be negligent in his choice, although by choosing the other course he might have escaped. In this instance, had he chosen to have stepped out on a floor beam and been knocked into the river by a flying timber, the argument might as well have been made that he should have tried to reach the platform.
*247The court submitted, at the instance of appellant, the question of contributory negligence in this respect to the jury in the 12th instruction, which will be found in the footnote. †
There is nothing in the record to justify the court in disturbing the acquittance of the deceased of contributory negligence in either respect.
3. The next point raised is that there was instant death, and hence compensation for pain and suffering prior to death can not be sustained. The facts testified to by eye witnesses were that the steam cylinder of the locomotive struck Mr. Kirby on the hip and knocked him from the bridge, and he fell on an iron grider, parallel with the bridge; that he strück this grider with some force, enough to make him bounce. Then he dropped his flag, which fell on one side of the grider and he on the other; and that as he fell from it he drew up his hands close to his breast. Another witness saw his left arm raised as he was falling. The bridge was 20 or 25 feet above the water. The river was swift‘and deep at this point. He was not seen after his fall. The train was making so much noise that it is not known whether he made any outcry or not. When the body was found some two months later, there were indications of bruises on the head.
For a recovery to be had for pain and suffering, there must be some appreciable interval of conscious suffering after the injury and before death. St. Louis, I. M. & S. R. Co. v. Dawson, 68 Ark. 1.
In Texarkana Gas Co. v. Orr, 59 Ark. 215, it was said “that the struggles of deceased were of the briefest character. He cried out twice, and his hands were burnt and drawn by the wires. He died almost instantly.” Yet in that case a recovery for conscious pain and suffering was sustained.
There is a conflict in the authorities as to whether in case of death by drowning there can be a recovery for conscious pain *248and suffering. See St. Louis, I. M. & S. Ry. Co. v. Dawson, supra.
It can not be said, in view of the evidence above detailed, that there was not a substantial interval of conscious mental and physical suffering irom- the time Mr. Kirby was struck on the hip by the locomotive on the bridge until he met his death in the river below; nor can it be said that the jury’s verdict of $500 is an excessive compensation for such suffering.
4. The remaining question is as to exemplary damages. The testimony of the engineer and the fireman can not be reconciled with that of the other eye witnesses. It is impossible to take it as explanatory of faqts established by other witnesses, for it is in direct conflict upon a vital point. The witnesses who saw the engineer and fireman say that they were looking ahead. They also testify that they were keeping a sharp lookout. And yet they say that they did not see Kirby on the west end of the bridge signalling to them as soon as the train rounded the curve, and they say that he was not there then nor later, and that he did not appear until they were within two or three hundred feet, when he commenced signalling them from near the center of the bridge. Whereas, as stated, the other eye-witnesses say that it was before the train came in sight that Kirby went out upon the west end of the draw, and was there signalling the train, when it was distant about a thousand feet. Either their testimony mu&t be accepted and that of the engineer and fireman discarded, or the latter accepted and the former discarded. The jury is the tribunal which settles such matters, and it has discarded the testimony of the engineer and fireman, and this court must take as the truth of the case the testimony of these other eye witnesses.
It was proved that the train approached the bridge without slackening speed (some say it was running 20 miles an hour when it struck the bridge), which was contrary to the rules of the company (and, it must be added, contrary to common sense and common prudence as well) ; but it was sought to be justified by custom. Be that as it may, nothing can justify the running of a train upon a drawbridge in this manner when a man was standing upon it waving a danger signal. Kirby was thirty-five or forty feet back from the west end of the bridge at the begin*249ning of the draw span, and was sixty feet west from the platform called the “jigger,” and 135 feet from the house in the center of the bridge. The only other places where he could seek safety, and that a precarious safety, were the floor beams which occurred about every 20 feet. It was Kirby’s duty to be where he was at the end of the draw; and, if the operatives of the -train had obeyed the rules, he was safe in being there; if they had obeyed the signals given by him, and there is no circumstance or custom to excuse their failure to do so, he was safe. But, instead of doing either, they ran upon him without signal or warning. There was no signal given that they intended to disregard his stop sign, and he had a right to assume that they were going to obey it. Unfortunately for him, he relied upon their obeying his signal until it was too late for him to save his life. They have now sought to justify their conduct by saying tlyat Kirby was not there. But, as indicated, the court can not, in the light of the finding of the jury upon substantial evidence, accept that as the truth of the case, but must regard it otherwise. Taking it as established that they were looking at him while travelling the distance of a thousand feet, and that they did nothing to warn him of their intention to run on the bridge, and made no effort to stop the train until .too late to save his life, can it be said that the verdict for exemplary damages was not sustained by sufficient evidence?
In Railway v. Hall, 53 Ark. 7, Mr. Justice Sanduls, speaking for the court in his -terse style, distinguished the elements of exemplary and compensatory damages, and .said of the former that it must contain “the element of willfulness or conscious indifference to consequences, from which malice may be inferred;” and that “a careless unconsciousness of plaintiff’s possible danger” was not sufficient to constitute a basis for exemplary damages. Applying this principle here, it can not be said that the jury was not warranted from the facts in evidence in finding the train operatives guilty of “conscious indifference to consequences, from which malice may be inferred.”
Criticism is made of the instructions in regard to exemplary damages.
At one place in the oral charge of the judge to the jury, which covered the issues generally, this occurred: “ 'On the *250other hand, if you find there was negligence on the part of the road or its employees, and no negligence on the part of the plaintiff, you will find punitive or exemplary damages; that, as to amount, is governed by the same rule — that is, your sound judgment and discretion.’
“Here objection was interposed to this instruction by attorney for the defendant, whereupon attorney for plaintiff arose and asked the court to instruct the jury that the negligence on the part of the defendant, in order to support punitive damages must be wanton, willful and gross. Thereupon the court said: “Yes, that is true,” and, turning to the jury, said: “Yes, gentlemen of the jury, before you can find punitive damages in any amount, you must first find that the negligence of the defendant, if any, was gross, wanton and willful; that is, the kind of negligence of the employees of the railroad company inflicting the injury in violation of its rules.”
As above seen, the trial judge, evidently through oversight, left out the necessary elements of exemplary damages, but promptly corrected the error when his attention was called to the oversight. Although the latter part of his explanation lacks clearness, if it be taken in connection with his whole charge, the jury could not have been misled, for. the instructions as to exemplary damages were full and explicit.
Judgment is affirmed.