Dutcher v. Wabash Railroad

241 Mo. 137 | Mo. | 1912

Lead Opinion

LAMM, J.

— Negligence. Defendant in apt time and due form appeals from a judgment in the Adair Circuit Court entered on a verdict in plaintiff’s favor for $10,000.

The pleadings. As we construe the petition it counts on the three specifications .of negligence following :

First, that plaintiff was walking on defendant’s track in Randolph county south of the city of Moberly at a point where said track (with the knowledge of defendant and its officers, servants and employees) was for a long time treated as a thorougfare by people not connected with the railroad service and by them was traveled as a public highway of said county. That such public user cast the duty upon defendant’s employees running its trains to keep a sharp lookout for persons on the track in front of them and exposed to danger. That on the occasion in hand defendant’s employees running a certain locomotive and train of cars failed to perform this duty, when by ordinary care in looking out they would have discovered plaintiff’s peril in time to have saved her. (Nota bene: This specification was not submitted to the jury.)

Second, complaint is made in the petition of a negligent-rate of speed of forty miles an hour in violation of defendant’s alleged duty to run its trains at the locus in quo at such speed as permitted the engineer to have his train “constantly under control.” (Nota bene-. This specification also was not submitted to the jury.)

Third, finally the petition counts on another theory, viz., that, plaintiff being on the track and unconscious of the train’s approach, defendant’s servants in immediate charge of its locomotive and train saw her danger in ample time to have warned her and to have stopped the train before running her down and negligently failed to do either, whereby she was run down, struck and injured. (Note. This was the issue put to the jury upon which to predicate a recovery.)

The answer admits defendant was a railroad corporation owning and operating the line of railroad mentioned, but denies all other allegations. Following that denial is a plea of contributory negligence— in that, the place of the accident was in the country among farms, where defendant’s track was inclosed by' side fences and cattle-guards and was not at the crossing at any public road; that plaintiff, without the knowledge or consent of defendant or its employees managing its train, negligently got upon its track as a trespasser and, walking thereon, negligently failed to stop, look or listen for the train. That as soon as she was seen on the track by defendant’s said servants. she was duly warned by both whistle and bell, notwithstanding which warnings she failed to leave the track as she had plenty of time to do. That if she had stopped, looked or listened she would have seen and heard the train in ample time to leave the track and avoid her own injury; wherefore, defendant avers that plaintiff’s hurts were caused by her own negligent, unlawful and careless conduct. While, as said, defendant, in its answer pleaded affirmatively that due care was exercised in giving warnings by signals, there is no affirmative plea of any attempt to stop before hitting plaintiff. The issue in that behalf was raised by the general denial.

The cause was argued twice at our bar — once in Division and once in Banc. The force of the oral arguments by learned counsel on both sides was spent on the alleged error of the ruling nisi disallowing a de.murrer to the evidence at the close of the whole case. So, error in that ruling is pressed with vigor as the main assignment' in defendant’s brief.

There are other assignments, viz.:

The court erred (1) in giving plaintiff’s first and second instructions; (2) in refusing eleven instructions prayed by defendant; (3) in permitting evidence tending to prove that plaintiff’s attention was attracted by the noise of an M. K. & T. train running nearby on a parallel track; (4) in modifying defendant’s 15th instruction; (5) in overruling defendant’s timely objection to the inflammatory argument of plaintiff’s counsel and in failing to rebuke counsel; and (6) finally that the verdict was against the instructions, was excessive and the product of sympathy, prejudice and passion.

Attending to those assignments, the main one seeks the facts, which are, to-wit: .

It is not amiss to cull, as near as may be, the undisputed from the disputed facts. Those undisputed follow, viz.: The scene of the accident was a mile or so south of the town of Moberly. Close by its south corporation line the Missouri, Kansas and Texas crosses the Wabash. Thence south for two or three miles the tracks of both run on a tangent and parallel 100 feet apart, the Wabash to the east, and the rights of way of both are inclosed by the same side fences and cut off by cattle-guards at public crossings.

Going north into Moberly there is an up grade of twenty-seven feet to the mile at the place of the accident, but the view on and of each track is quite unobstructed for a mile and a half or more either way from that place. At that point the Wabash track lay on a fill.

Some two or three hundred feet north of that place an east-and-west public road cuts both railroad tracks at a right angle, making what is called the Headinghouse crossing. About one-half mile south of the Headinghouse crossing there was another east- and west public road making what is called the Terrill crossing.

There was a school house at a cross-road corner west of the Terrill crossing. Miss Butcher began teaching school in that country schoolhouse four days before she was injured, to-wit, on the 6th day of September, 1906'. She boarded with her brother, who lived on a farm northeast of the Headinghouse crossing on a north-and-south public road. She could go home from school by public roads in two ways. First, she could turn north at the corner at the schoolhouse on a public road and after aways turn east and go on over the Headinghouse crossing, and thence on east until she came to the north-and-south road on which her brother lived, and thence north on that road home; or she could go straight east from her schoolhouse on the Terrill road, cross both tracks at the Terrill crossing, thence on east till she came to the road on which her brother lived, thence turn north home, missing the Headinghouse crossing altogether.

She took neither of these ways home on the day she was hurt, nor had she taken either in the four days of her school term. She went (as she always had gone) east on the Terrill road until she came to or close to the Terrill crossing and then she turned north taking the M. K. & T. track for it. Presently, for personal reasons immaterial here, she changed over from the M. K. & T. to the Wabash and traveled north on the latter’s track for, say, a quarter of a mile, heading toward the Headinghouse crossing, where she planned to turn east until she came to the road on which her brother lived. It was about 4:3G of a clear, warm, bright summer afternoon. Taking with her a pupil, a little girl of ten years, she (herself aged nineteen) walked north in the middle of the track, bareheaded, carrying a lunch satchel and a box of wild haws, and being at the time in full possession of perfect natural senses. It seems the child walked a trifle ahead and to one side outside the rail on the ties, but within the danger line. The testimony is that after starting north neither of them turned their heads to look for a train from the south, hut faced steadily to the north. However, when Miss Dutcher first got upon the Wabash track she looked to the south, hut no train was then in sight.

A few minutes before the accident, a train on one track was approaching one running on the other. On the M. K. & T. track there was a heavy freight train of 1000 or more feet in length, made up of twenty-five loaded cars, running down grade to the south at, say, 20 miles per hour and making a great .deal of noise. On the Wabash track there was a train of, say, 510 feet in length, made up of twelve loaded freight cars, running extra, approaching her from the south at a speed of from twenty-five to thirty miles per hour. The eight forward cars of this train and the engine were well equipped with air — the last four, including the caboose, were non-air cars.

When a mile or a mile and a half away (and constantly thereafter until he struck her) the engineer of the Wabash train saw the school mistress and little child going north on the track ahead of him, with their backs to him, and kept them under his eye. He also saw the M. K. & T. train coming to meet his. A man of experience, such as the Wabash, engineer was, could well conclude, as appears from the testimony, that at the rate the two trains were running the Wabash train would catch up with the school mistress at the very time the M. K. & T. train would pass her only 100 feet to her left. This would become more and more obvious as the trains covered the distance between them. That was precisely what happened. At two or three hundred feet south of the Headinghouse crossing, when the caboose of the M. K. & T. train was passing her or had got by her a hundred feet or so, the locomotive of the Wabash train struck.ber and tossed her many feet up and to one side off the track. The child was not injured — the record being dark on the reason why.

It does not appear which way the wind, if any, blew and train sounds carried. Although bareheaded and in possession of all her natural senses, as said, Miss Dutcher did not hear the train that struck her nor did she know what struck her, and the evidence of the several eye witnesses is to the effect that as that train approached her from behind she walked straight on in the middle of the track, giving not the least sign she was aware of its approach, but to the contrary showing by her carriage and conduct that she was. entirely oblivious to its presence.

She was taken up unconscious,, remained unconscious for days, was injured on her head, an arm and leg were broken and possibly both arms, she was disfigured, one of her feet and the toes of that foot are drawn out of place, making her clubfooted and lame, one arm is crooked, there is a catch in the elbow of it, and there are other serious injuries — in short she is a cripple for life.

The M. K. & T. train was, as said, over 1000 feet long. As the men on the engine of that train approached her they saw her and apprehended her ignorance of danger and imminent peril and did their best to attract her attention to the Wabash train bearing-down upon her from behind by shouting and motioning. At the same time at the rear of the M. K. & T. train the men on the caboose also saw her peril and that she was unaware of it and also tried to warn her by shouting and gesticulating until they passed her. She saw this train and the motions of these men but, misapprehending their meaning, she thought they were trying to flirt with her and went her way in the middle of the track with her face, as always before, set to the north.

There was a whistling post eighty rods south of the Heading-house crossing. All sides agree that the Wabash engine gave the usual crossing signal at that post. I ana of opinion that the fact, or if not the fact, at least the time and extent of the alarm signals, if any, belong in the list of disputed or uncertain facts to be stated later on.

We shall assume it proved beyond question that at the instant the school mistress was struck the Wabash engine had slowed down some — the extent thereof and the time and character of attempts to stop belong also in the category of disputed or uncertain facts to be noticed later on. After she was struck the Wabash train stopped, but before stopping it ran so far that its caboose stood about two carlengths (s'ay sixty-eight feet) north of where her body lay in the ditch. That is, it ran its own length (about five hundred and ten feet) plus sixty-eight feet. She was struck about 300 feet south of the Headinghouse crossing. The day was warm, as said, and the windows of the Wabash caboose and of its cupola were open. A brakeman, in order to make a quick switch at Moberly, had gone forward over the Wabash engine to the cowcatcher. He shouted to the school mistress as the engine caiiie on, and, seeing she was unconscious of the warning and that the engine was bound to strike her, he left-his post and came back over the engine before that event. . -

All the testimony tends to show that plaintiff was a trespasser on the Wabash track and that the sporadic occasional use of the track by footmen did not establish any public right by custom, acquiesced in, to such user at the time and place.

It maybe taken as established, also, that when the air brakes were once applied the jar of the air going on would be felt immediately in the non-air cars at the tail of the train. Moreover that, speed and track both considered, it was impossible to stop after the air was actually applied before hitting plaintiff, leaving the question open for the nonce whether the application of the air was negligently delayed.

We now come to a set of facts which are uncertain or disputed, or from which different- inferences are drawn by counsel. As the summary we are making relates to defendant’s demurrer to the evidence, we shall deal with the disputed and uncertain facts in a , way as favorable to plaintiff as the record will allow —laying to one side, as within the province of the jury, both self-contradictions of, and disagreements between, witnesses; and giving our impressions of the tendency of the proof based on a critical study of the record, rather than swell the statement by profusion of detail.

There is some evidence to the effect that a rain had lately fallen and the public roads were heavy, and much that there was a dry spell and those roads were dusty; but, as this testimony connects itself merely with the use of the track by pedestrians, we lay it out of view on the same shelf with the user itself.

By far the greater weight of the testimony tends to* show that alarm signals were given by the Wabash engineer before the school mistress was struck. Some of it indicates they commenced at once after the crossing signal at the whistling post, say, 800 or more feet away from plaintiff. Some of it is to the effect that these signals commenced subsequently when the Wabash engine was 600 feet south of plaintiff. The engineer so testified. His account is that, noticing that the school mistress and the little girl did not look around when he gave the crossing signal, he drove ahead until within about 600 feet of where plaintiff was struck, when he began giving danger signals and continued them until she was struck. She was, as already said, always under his eye and he saw she gave no indications that she heard the signals or the train but just walked on in a leisurely sort of gait. But there was other testimony from some of defendant’s witnesses who were watching the train, the school mistress and little girl, which is fairly susceptible to the construction that the alarm signals were first given when the engine was about one hundred and eighty or two hundred feet from the school mistress. There was an eye witness (Collins) on the M. K. & T. track 175 feet north of the Headinghouse crossing who left the track to let that train pass. There is some uncertainty whether he left to the east or to the west. If to the west, then the M. K. & T. train passed between him and the scene of the accident and shut off his view for the time. If to the east, then he was in plain view all the time. However, when the M. K. & T. passed him he could see what happened. He testified that the sharp alarm blasts were given after the M. 3L & T train passed him (but by which train he did not know) and he must have stood about four hundred feet from the point where she was struck.

There was negative evidence of some appreciable value. For instance, as pointed out, the school mistress was bareheaded and had good ears and she heard no alarm signals at all from the Wabash train. A silent fact of some value is that the child seems to have heard no alarm signals either. So, the Wabash conductor who was 510 feet from the nose of the engine of his train and was in a caboose with open windows, says he heard no alarm whistling until a while after he felt the jar and jam of his train from the air going on. A brakesman, in the cupola and similarly situated, gave evidence to the same effect. There was some testimony that the alarm signals continued after she was struck and one witness who was watching (Collins) says he saw no steam escape from the Wabash whistle.

Another witness testified the alarm signals were given after the M. K. & T. train passed south over the Headinghouse crossing. On that hypothesis they were given much less than 600 feet from her. So much for the fact of alarm signals and the time they were given.

What of attempts, if any, to stop the train and when were they made ? The engineer says that, simultaneously with giving the alarm signals when 600 feet away from the plaintiff, he turned on the full force of his air and that his efforts to stop resulted in lowering his speed to about sixteen or eighteen miles per hour. Other testimony cuts the speed down to from ten to fifteen miles per hour at the moment of impact. Some of the testimony tended to show that the emergency air was turned on before and some of it after the alarm signals were first given, and some of it, not •agreeing to the distance mentioned by the engineer, tended to show (as he testified) that the air went on at the same time the alarm signals were given. There; was also testimony tending to show that the train ran after the emergency was applied eleven or twelve hundred feet and that the stop was a good one (this from the engineer and others), but there was other testimony tending to show that the train only ran from 600 to 800 feet after the emergency air went on. Assuming the train was running at the time it struck her at twelve to sixteen miles per hour, there was testimony tending to show that at twelve miles per hour, it could stop in 300 feet and at sixteen miles in 400' feet. In point of fact it ran after the blow about 600 feet. The witness Collins testified there was no slacking of speed at all until after Miss Dutcher was struck.

If necessity arises other facts will be stated in connection with the disposition of the assignments of error seriatim.

I. When this case was aigued in Bivision, the three sitting brethren were at first of opinion the demurrer to the evidence was improvidently ruled. But a restudy of the record, aided by arguments in Banc and new briefs, warrants a holding that the demurrer was well ruled. This because:

(a) Defendant’s counsel industriously (and ex industria) have marshaled a great array of authority which we take as intended to explode the humanity rule as broadly expounded and adhered to in this jurisdiction. Thus, based on the theory that plaintiff was a trespasser and walked for a quarter of a mile oh defendant’s track without' looking behind her for a train, it is contended she was guilty of such palpable contributory negligence as defeats recovery as a matter of law, regardless of defendant’s own negligence. But we will not be drawn into an extended exposition of the philosophy of the humanity rule nor into a fresh defence of it.

In Reyburn v. Railroad, 187 Mo. l. c. 574, we said: “If what this court has said in former cases has failed to reconcile appellant to the justness of this doctrine probably nothing we could now say would be more persuasive.” That language was addressed to an attack made upon the humanity rule as laid down in the same case in these words (pp. 573-4): “It has long been the doctrine of this court that though a man voluntarily adopts the dangerous track of a railroad for his footpath and walks in it apparently heedless of the danger entailed, yet if the servants in charge of the locomotive see him and realize his danger, . . . it then becomes their duty to exercise ordinary care to do what they can with the means then at hand to avoid injuring him, and if they fail in that duty the railroad company is liable, notwithstanding the negligence of the injured man.”

In the Murphy case (228 Mo. 56) an elaborate and animated assault — one of many before — was delivered in Banc on the rule. In response we said, inter alia (p. 80'): “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.”

In Banc in the Eppstein case, 197 Mo. 1. c. 733, certain propositions pertaining to the humanity doctrine were formulated. Two of them are: “(a) Where one (at least one sui juris) is in a place of safety and therefrom negligently moves to a place of danger, so immediately before that danger that it may not be averted by the use of ordinary care by those controlling the dangerous instrumentality, and is killed, his death is not actionable, (b) Where one, unconscious of his peril, has negligently placed himself in a position of danger so far away from that danger that his death may be averted by the use of ordinary care by those who see him and who control the dangerous instrumentality, his death is actionable.”

In peril oft may be, yet so stands today the rule of law administered by appellate courts of Missouri in negligence cases coming within the range of the rule. Stare decisis. Quieta non movere. Accordingly the demurrer to the evidence cannot stand on the unsoundness of the humanitarian doctrine.

(b) A locomotive engine is equipped with whistle, bell and ability to stop its train. When one is negligently upon a railroad track unconscious of his immediate peril and that peril is timely discovered by those in charge of the engine they may not punish him for his negligence by knocking him off and thereby killing him, o,r breaking his bones or mauling and smashing his body. Out of tenderness to life and limb they must do what every man must do for every other man. in times of peace, viz., use due care to preserve life and limb. Due care is care according to circumstance. Due care calls for the use of the means at hand to prevent one’s injury to the person timely seen exposed to danger. The means at hand in this instance were bell, whistle and ability to stop. In some cases, the mpnotonous stroke of the bell might be due care. In others, easily put, the alarm whistle timely used might be dne care. And (the gauge of duty arising precisely with the obvious danger and the circumstances attending the individual case, under the axiom “the greater the hazard the greater the care”- — per Yalliant, J., in Woods v. Railroad, 188 Mo. 229) in some extreme cases nothing short of stopping would be due care. Because plaintiff was a trespasser those of defendant’s servants in charge of its locomotive were under no duty to look out for her in the country away from congested populations and between public crossings, absent a known and permitted public user, as here. But in this case they saw her a great ways off and saw her peril. Barring the duty to look for trespassers, the duty to use due care not to. kill or maim them if they are seen in time, is precisely the duty owed to those not trespassers.

In Lynch v. Railroad, 208 Mo. l. c. 34, it was ruled: “But even if he (deceased) had been guilty of contributory negligence, running as he was for a half mile ox two-thirds of a mile in plain view of the engineer and fireman on this engine and having indicated in no way to them his knowledge of their approach, it was their plain and obvious duty to exercise reasonable care for his safety and not run over him. Prom the time they saw him and observed, as alleged in the defendant’s answer, that he was not looking back and was ignorant of their approach, it was their duty to warn him and to slow down the train and stop if necessary in order to save Ms life.”

The Chamberlain case was in Banc (133 Mo. 587). In discussing the Sinclair case (133 Mo. 233) and the Reardon case (114 Mo. 405) we considered an instruction in the Chamberlain case, which, among other things, told the jury that, if Chamberlain (quoting) “while walking upon defendant’s track, became in imminent peril of being struck by defendant’s train, arid defendant’s employees in charge of said train became aware of his peril of being struck in time to have enabled them, by the exercise of ordinary care, to have stopped said train, and to have averted the injury to said deceased, . . . and that they failed to exercise such care and stop said train, and that by reason of such failure to exercise such ordinary care, the said train was not stopped and said Chamberlain was struck and killed, then the jury must find for the plaintiff, though the jury may find that the deceased, Godfrey Chamberlain, was guilty of negligence in walking on defendant’s track.” In speaking to that instruction and approving it we said (p. 605): “But the instruction would not be proper in all cases, as the signal if given in time would be all that was required to apprise a trespasser, until it is seen he apparently does not hear it. The engineer is not required to stop his train if the trespasser is far enough away to warn him, and a timely- warning is sufficient until it is seen that for some ,cause it is not heeded; then it is his duty to avoid hilling, even a trespasser, if by .the exercise of ordinary care it can be done.”

The sound general doctrine is thus summarized and formulated in an excellent treatise (2 Shear, and Red. on Neg., sections 483-4): “The rule stated in section 99, that the plaintiff may recover, notwithstanding his contributory negligence, if the defendant, after becoming chargeable with notice of the plaintiff’s danger failed to use ordinary care to avoid injuring him, has been enforced in'many railroad cases. It is universally agreed that this rule applies to all cases in which the defendant or his agent is actually aware 'of the plaintiff’s danger. Thus, a locomotive engineer or motorman, after becoming aware of the presence of any person on, or dangerously near the track, however imprudently or wrongfully, is bound to use as much care to avoid injury to him as he ought to use in favor of one lawfully and properly upon the track, that is to say, ordinary care with respect to anticipating injury, before it becomes imminent, and the utmost care and diligence of which he is personally capable, after he knows that it is imminent. He must' promptly use all the usual signals to warn the trespasser of danger, and he mnst also check the speed of his train, and even bring it to full stop, if necessary, unless the circumstances are such as to justify him, acting prudently, in believing that the traveler sees or hears the train and will step off the track in ample time to avoid all danger, without any diminution of the speed of the train. ... In general, an engineer has the right to assume that a person walking upon the track is free to act, and is in-possession of all ordinary faculties, and will therefore act with ordinary prudence; but when the conduct of the traveler is such as to excite a doubt of this, the engineer is bound to use greater caution, and to check or even stop the train, as may be necessary. So, where he sees a little child upon the track, he has no right to assume that the child will use the same discretion for its own protection as an older person would; and he must bring the speed of the train under control as quickly as possible, so as to be able to stop it altogether, if the child does not appreciate its danger. . . ; The rule stated in the last secton, however, does not cover the whole ground. The defendant is responsible, not only for what he actually knows, but for that which he is bound to know. It is clear that the frequent statements that contributory negligence is an absolute bar to recovery, except where the defendant’s conduct has been ‘reckless,’ ‘willful’ or ‘wanton,’ or even grossly negligent, are not sound. No courts have in actual practice adhered to this imaginary rule; it has been explicitly overruled, and, indeed, it has been explained away or disavowed by courts which have previously stated it. Nothing more is really meant by tbe courts using these phrases than a want of ordinary care, after becoming actually aware of the plaintiff’s peril.”

Assuming that due care may embrace the duty to give alarm signals in some cases, and the further duty, when those alarm signals fail (or apparently will fail) of their purpose, to stop the train, it remains to inquire: "When does either duty arise? Attend to what we have ruled on that score: “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” — per Maceaklane, E., speaking for the whole court, in the Sinclair case supra. Still further speaking to the point, he said (p. 242): “Prom these cases, and many others that might be cited, it seems to be well settled that it'here 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.” Speaking to the duty to stop the train we in that case further ruled that “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. ’ ’

And in a late case in Banc, Degonia v. Railroad, 224 Mo. l. c. 595, there is guarded general language by our Brother G-raves apposite here, viz.: “Plaintiff’s case therefore must proceed upon the theory that defendant’s servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts.”

Justice is the constant and perpetual desire to give to every one his due, says Coke. It is not strange, then, that in a court of justice the just rule should be (as it is in eases of this character) that when conditions intervene to confuse or prevent hearing an alarm signal or knowing its object, or where the conduct and actions of a party walking on a track with his back to a coming locomotive and a train of cars, should cause an" engineer of ordinary prudence to conclude that such party did not or could not hear alarm signals and was continuing his walk on the track, the right of the engineer to act upon the presumption that he would leave the track before being hit ceases. Take an example by way of illustration. There is a working presumption indulged that a party approaching a street car track will stop and not step upon it in front of a going car, but that presumption ceases when by the actions and conduct of the traveler it would be apparent, to a prndent motorman that he does intend to go upon the track (Ellis v. Railway, 234 Mo. l. c. 680-1 and cases cited). We can see no difference in principle between the two propositions. Both of them run on the theory that the party in charge of the car or locomotive should act on reasonable appearances and exercise due care in giving signals or in stopping.

Care to be due requires that alarm signals be given when they would be effective. And due care required that the attempt to stop should be made, as a last resort, when it would be effective; for if defendant owed any duty to stop at all that duty must begin when it amounts to something worth while. It must not be pretermitted until it amounts to nothing whatever. Any other view is hollow mummery — mere “words, words” that “lose the name of action.” Again, speaking of due diligence or care, it is axiomatic that he who has at his disposal the means of ■ knowing, is held to know; that he who shuts his eyes when to open them and look is to see, is held to see; that where there is a duty to use diligence, those facts which diligence will discover are presumed to be known under the law of notice; and that what one knows and what he ought to know is regarded in law as equivalent. These trueisms are more often invoked in negligence cases against a plaintiff, but where the boot is on the other foot and defendant is charged with a "duty to use due care, as here, they fill a very useful office in determining the scope and discerning the elements of defendant’s duty.

We come now to apply more closely the general principles announced to the facts of the case at bar.

The engineer of the Wabash train gave his alarm signals, under some of the evidence, at about the time the M. K. & T. engine was opposite or nearly opposite the school mistress and child, to their left 100' feet. He continued them while that engine and long’, heavy train thundered past her. We think he is charged with the duty to see and know that intervening conditions had arisen likely to confuse and prevent her hearing those signals. At least that was' a question for the jury. He was charged with the duty to know and realize further that her actions unmistakably indicated she had not heard the crossing signals behind her. Whatever a man who knew of an approaching train might do in remaining dangerously long on the track, this engineer had no right to assume that the young school mistress and little girl, both presumably armed with the quick ear of youth, timid and shrinking from danger, were trifling with death by remaining on the track after they heard the crossing signals behind them. It is not natural for a woman and child to act that way. Natural instincts are allowed to have their weight and constitute evidence to men of sense. [Stotler v. Railroad, 200 Mo. l. c. 146.] Moreover, the situation, before a finger was lifted, had been allowed to drift and become so crying that the engineer concluded the emergency air should go on simultaneously with his giving the alarm signals. Is that the usual-course1? According to his theory, with everything to be seen lying right under his eye, he drove ahead for' 600 or 700 feet after giving the crossing before giving the alarm signals. In other words he waited until the deafening noise from the near approach and passage of the M. K. & T. train would naturally, according to the physics of the matter, make it a matter of doubt whether the alarm signals would reach her and be effective. At least there was a question for the jury on that point and they were entitled to take that view of it. Moreover, there was testimony strongly tending to show that the engineer was mistaken about the distance. There is testimony that it was less than 600 feet, and some of it indicated he was as close to her as 180 or 200 feet. Such testimony raised an issue for the jury on the question of diligence and care in the time of giving the signals. Again, while the broad current of the testimony ran the other way, yet there was testimony of some value, negative in character, from which the jury might infer no alarm signals were given at all. There were silent facts, of which it may be said, though silent, they cry out (dum tacent, clamant), squinting the same way. We lay little stress on this feature of the case. We think if that had been the sole issue and the jury had found fox plaintiff the duty of the trial court would have been to set the verdict aside as against the very great weight of the credible testimony. But when a case at law comes by appeal to this court, we have nothing to do with the weight of the testimony. The appellate function is to say whether there is any substantial testimony. A mere glimmer or spark, a mere scintilla will not do, but if there is substantial testimony, however small as compared to the great body of the proof, we have no right to meddle with the weight of it, or ignore it because negative in character. We deem it not space misused to reproduce some excerpts from a case in the House of Lords (Railroad Co. v. Slattery, L. R. 3 App. Cas., pp. 1155, 1164-5, 1167, 1181, 1182-3).

The Lord Chancellor said: “There is thus opposed to the evidence of two persons who say they did not hear, which may mean they did not observe, the whistle, and of one who says he did not hear it, but will not swear it did not take place, a body of witnesses, ten in number, including every person whose evidence could be supposed to be material, all of whom seemed to me to be entirely unimpeaehed and unimpeachable, who state in the most positive way that the whistling did take place.

“My Lords, I have already said that your Lordships have not now before you the question of whether the verdict was against evidence, or against the weight of evidence. But I feel bound to say that if that question were now open, I should, without hesitation, be of opinion that a verdict more directly against evidence I have seldom seen. It is stated that the learned judge before whom the case was tried was not dissatisfied with the verdict. I can only express my surprise that this should have been the case. As it is, it appears to me that the jury, actuated perhaps by feelings of compassion for a plaintiff who is no doubt much to be pitied, and willing to gratify those feelings at the expense of the appellants, have found the 'first issue, that of negligence on the part of the appellants, for the respondent, when it ought to have been found for the appellants. This, however, as I have already said, is not a reason for entering the verdict for the defendant. It is only a ground for a new trial. ... I certainly cannot look on the result of this litigation as satisfactory. The appellants will, I fear, have to pay a sum for which I cannot think they ought to have been made liable, and the respondent and her children will recover money to which I do not think that their legal right is established. But I cannot seek to prevent this by proposing to your Lordships, on the only part of the case which is brought for your deter-ruination, to do what it appears to me would seriously encroach upon the legitimate province of a jury.”

And. Lord 0 ’Hagan, in the same case, said: ‘ ‘ My Lords, the principle on which, I think, this case ought to be decided appears, to me to be well expressed in the trite maxim, ‘Ad quaestionem juris respondent judices; Ad quaestionem facti respondent juratores.’ That maxim is old but cannot be obsolete whilst trial by jury subsists among us. . .' . As to the first question, whether the defendants were guilty of negligence, I cannot see how, possibly, it could have been taken from the jury. I shall not occupy the time of the house by any repetition of the narrative which has been lucidly given to it by my noble and learned friend on the woolsack. I shall only remind your Lordships that the learned Lord Chief Baron Palles rightly confined the attention of the jury to the consideration of the alleged want of whistling, as the one instance of negligence with which they had to do; and that with reference to it there was a large body of testimony and clearly conflicting testimony. Ten witnesses for the defendants swore that the whistling occurred at the proper time and in the usual way; three witnesses for the plaintiff swore that, being in a position in which, if it so occurred, the sound should have reached their ears, they-did not hear it. It is impossible not to be struck by the apparent weight of the defendants’ proof. But, as was observed in the Irish Court of Common Pleas, the jury saw the witnesses, and the judge did not condemn the verdict. And, whether it was right or wrong, the jurors along were competent, legally and constitutionally, to decide between the ten who testified on the one side and the three who testified on the other. It was urged, and the authority of an eminent judge was vouched to sustain the suggestion, that proof of the want of hearing was no material proof at all. But this seems to me untenable. Assuming that a man stands jn a certain position, and has possession of his faculties, the fact that he does not hear what would ordinarily reach the ears of a person so placed, and with such opportunities, seems to me manifestly legal evidence, which may vary in its value and persuasiveness — which may in some instances he of small account, and in others be the strongest and the only evidence possible to be offered; but at all events cannot be withheld from the jury. And if this be so, there was here a conflict of testimony on which the jurymen, and they alone, were competent to pronownce.”-

The doctrine thus announced finds support in cases cited from our own reports in the briefs of counsel for respondent.

Again, taking the plainly confused situation, a situation so open and unusual as to be properly designated extraordinary — a situation in which a prudent engineer could see that there was a probability of alarm signals being drowned in the great volume of noise made by the heavy M. K. & T. freight train thundering past and near her — did the engineer use due diligence in applying his emergency brake? Did he not wait until he must have seen and known that the use of the brake was bound to be an idle formula? Mark, he could not possibly stop, after he began to stop, in time to save her at the rate he was going. He knew that or was bound to know it, which is the same thing. If the emergency was turned on precisely when the alarm signals began then there is some testimony tending to show that the air went on not 600’ feet away, as the engineer says, but a great deal closer than that. Their spontaneous and instinctive judgment, born of facts that lay before the eyes of the railroad employees on the M. K. & T. train, showed them during the time their train was 'approaching and running for twelve or fifteen hundred feet, as we figure it, that this woman and child were in deadly peril and were unconscious of it. What they saw the Wabash engineer must also be held to see.

We are not dealing with a case where a person attempts to cross a track so closely before a locomotive that the engineer has no time to save life, nor with a case where the peril of a trespasser is not seen in time to save him, nor with a case where there is nothing to prevent the alarm signals being effective. We are cited to many cases of that sort, but they are not in point under the record in the instant ease.

Our conclusion is there was a case for the jury, hence the demurrer was well ruled.

II. While the main proposition for reversal (on which the whole force of the oral argument and marked labdr in collecting authority in briefs were spent) is the demurrer to the evidence, yet, as said at the outset, there are subsidiary assignments of error, viz.-: Defendant’s counsel lodge sundry objections against two instructions. One is that without any evidence to support them the court submitted issues whether signals or warnings were given, whether any efforts were made to prevent injuring plaintiff, and authorized a recovery without a finding that the engineer realized plaintiff did not hear the signals. Another is that it was erroneously assumed that plaintiff would have heard a whistle if one had been sounded, and erroneously assumed that the engineer discovered plaintiff’s peril in time to save her by the exercise of ordinary care. Another is that the same instruction' authorized a verdict if she did not hear the signals although the engineer may have had every reason to believe she did hear them, and in that particular there was a conflict with four of defendant’s instructions — that the instruction did not require the jury to find from the evidence that given signals were not heard, or that the engineer had good reason to believe they were not heard and after he discovered her peril could by ordinary care save her. Another is the alleged assumption that the engineer could have-stopped the train after discovering plaintiff’s peril, and that it required more than the exercise of ordinary care. Another to both instructions is that they submitted to the jury the question whether plaintiff was a trespasser and was guilty of contributory negligence when that fact should have been declared as a matter of law by the court.

Acquiescing in the controlling prominence given to it by counsel, we considered the main proposition so fully that we feel justified in not disposing of those objections seriatim on full discussion, as we would have done if a suitable length to this opinion permitted. Counsel must rest content with the general ruling, to-wit, that we have not been able to find re-versible error in instructions.

We make these general observations and let it go at that, to-wit:

The ruling on the demurrer disposes of some of them.

Some of them are refined and technical to a degree reflecting no little credit on the acumen of learned counsel, but in no way, that we can see, affecting the merits or tending to mislead the hard-headed men in the box.

In some of them, suggested doubts and uncertainties are cleared away under the doctrine of aider by one or the other of the twelve instructions given for defendant.

Some of them are answered by a reference to the testimony of the witness Collins who was watching the train and testified, in effect, that it did not slacken its speed until after plaintiff was struck (that testimony may have been untrue, but its falsity is not for our determination. Plaintiff was entitled to reckon with it as one hypothesis).

Some of them are answered by a reference to the negative testimony which, as heretofore pointed ont, tended to show no alarm signals were given np to the time Miss Dutcher was struck. (However, liability was not alone predicated on that fact, but the matter was woven into an instruction and coupled with other facts put to the jury by the conjunction “and.”)

Taking the whole body of the instructions (defendant’s with plaintiff’s) and reading them together, as we must, the ease was fairly put to the jury.

The point is disallowed to defendant.

III. The court refused twelve of defendant’s twenty-four instructions. Error is assigned on that score — the demurrer was one and is already decided.

One of those remaining told the jury that no warning signals were necessary until after the engineer discovered the teacher did not hear the rumbling of his train. It was well refused. When a twist of the wrist will sound a warning signal, why should an engineer dally and twiddle by speculating on the effect the rumbling of his own train had on a woman who was within the sound zone of a much nearer and much greater train? There is no testimony this engineer relied on rumbling. ‘

Another was refused which practically declared, upon facts admitted, that plaintiff was precluded of recovery beause she walked leisurely down the track without turning her head, and this although the jury believe “that no signal was given nor effort made to stop the train.” That instruction was not the law of a case falling within the humanity rule. The demurrer disposed of it.

Another was refused declaring, in effect, that an alarm signal at 600 feet was due care and that the engineer was not required to stop the train when he came in stopping distance of plaintiff. That might be good law in a proper case, but not under the circumstances we are dealing* with. The disposition made of the demurrer disposes of it precisely as the trial court did.

Another was refused calling the jury’s attention to the noise of the M. K. & T. train and declaring as a matter of law that because of that noise it was plaintiff’s imperative duty to look behind to see if a train was approaching, and if she failed in that she could not recover. In effect, that was mandatory instruction for defendant, therefore is covered by the demurrer and must be similarly ruled.

Another was refused declaring "as a matter of law that if the alarm signals and attempts to stop began GOO feet from plaintiff and continued until she was struck she could not recover. That instruction invaded the province of the jury in determining what was due care under the particular circumstances of this case. Assuming our ruling on the demurrer is sound, the instruction was not the law of this case.

Another was refused declaring as a matter of law that plaintiff was guilty of such contributory negligence as precluded recovery. That instruction was' in the very teeth of the humanity rule as expounded in the first paragraph of this opinion. ■

Another was refused telling the jury that defendant owed no duty to plaintiff except to not willfully and wantonly run upon her without warning. The willfulness and wantonness doctrine is exploded. The touchstone of duty in the law of negligence is due care, not a shade less or more. Due care under the circumstances of this case does not exclude the duty to stop, as the instruction does.

Another was refused taking from the jury the right, to consider the noise made by the M. K. & T. train. That instruction eliminated the most pregnant fact in this case with one stroke of the pen. Defendant would hardly admit that it employed engineers' who did not know that M. K. & T. trains made noises the same as Wabash trains, or who are ignorant of the immutable law of physics that the proximity of a g’reater noise has a tendency to drown out more distant noise. Any boy who ev.er worked around a threshing machine when the dinner horn blew knows that. The evidence relating to this noise was admitted over objection. We shall recur to the matter- when that ruling is considered. Some of defendant’s suggestions anent the instruction may be better disposed of then.

Another refused instruction was predicated of the theory that if a whistle was sounded and if it could not be heard because of the noise of the M. K. & T, train then in that event plaintiff should be cast. That was not the law of this case either.

Another declared it to be the law that if the whistle was blown from three to six hundred feet from plaintiff and afterwards until she was struck and the engineer did all in his power to save her after discovering she did not get off the track to avoid her own injury, then the verdict must be for the defendant. That instruction under the circumstances of the case invaded the province of the jury by limiting the distance in which the engineer was obliged to begin an effort to warn and save plaintiff to within three to six hundred feet. It was well refused.

Another told the jury there was no evidence that plaintiff’s position was one of peril from which she could not easily extricate herself (quoting) “until the train got so close to had no time to step off her that she the track.” We are not quite sure we understand the whole of this instruction. The part we do understand was wrong, the part we don’t understand we express no opinion upon. If there was any substance in the quoted part, as originally drawn, it is likely counsel would have seen to it that it was brought here in proper form.

There was no error in refusing instructions for defendant.

TV. Error is predicated of a ruling of the court permitting plaintiff to show the noise of the M. K. & T. train, and further that any experienced person observing the trains could see that the two would pass at about the place she was struck. It is argued these were specifications of negligence not pleaded in the petition. But these facts were evidential. They related to the charge of a failure to use due care in warning and stopping. We think the point without substance.

V. The court modified and gave for defendant instruction 15, reading: “The court instructs the jury that under the evidence in this case the plaintiff was a trespasser on defendant’s railroad track and the defendant owed her no duty in the first instmce except to warn her by the usual signals of the approach of the train in time for her to step off the track and avoid being struck.” (Note: the italicized clause was written in by the court). As originally written the instruction was bad in excluding any duty to stop under any circumstances. . Even as modified and given it is not in accord with the bulk of defendant’s testimony which pointed to a situation at the time apparently demanding the instantaneous application of the air with the blowing of the whistle. If it did any harm it did harm to plaintiff, not defendant.

VI. It is next argued that the inflammatory argument, of plaintiff’s counsel was grossly prejudicial and that the court erred in overruling defendant’s objections thereto and in failing to rebuke counsel: and next that the verdict is excessive. We do not think the verdict excessive. Plaintiff is confessedly a permanent cripple, her chances to get on in life are lessened, her injuries are extremely grave and her sufferings prolonged, aconte and not over. There is no evidence of simulation or hysteria. She asked $40,000 and got one-fourth of it. Compared with many judgments we meet with here, it was sober and modest, reflecting credit on the management of defendant’s counsel.

We have examined with pains the colloquies between court and counsel during the jury argument of Mr. Harrington on behalf of plaintiff. In some of them there was no ruling by the court and no exceptions saved for a failure to rule. In some of them the court on request did admonish and rebuke him. In others objections were made and sustained and no request was made to rebuke counsel. , In still others the objections were without vitality.

We do not feel justified in reversing the judgment because counsel by inadvertence was betrayed during the hot foot of the argument into straying a little outside the record, for which he was admonished by the court. To my mind the ease is not a close one, and sure it is that the size of the verdict does not show that the inflamation, if any, arguendo, bred unseemly infla-mation in the mind of the jury.

The premises all considered, the judgment should be affirmed. It is so ordered. Yalliant, G. J., and Ferriss, Kennish and Broion, JJ., concur; Woodson and Graves, JJ., dissent.

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Dissenting Opinion

DISSENTING OPINION.

WOODSON, J.

— On motion for a new hearing in this cause, one of the judges dissented from the Divisional opinion, and in consequence thereof, the cause was transferred to court in Banc; and upon reargument a majority of the judges dissented from the Divisional opinion and ordered Brother Lamm to write the opinion for the court, which he has done in a very able manner.

But after a careful consideration of Ms opinion, I am forced to dissent therefrom.

It seems to me that the error my associates have fallen into is in assuming that the employees in charge of the train upon the Wabash road and those upon the M. K. & T., were near each other, and could see and hear each other as though they were seated around a table in a quiet room, discussing the case as we did in consultation; whereas the facts are that when the employees of the Wabash first saw or could have seen the respondent the train upon which they were was about two miles away and was running about fifty miles an hour, and those on the M. K. & T. were a mile or more away in the opposite direction and that train was running about thirty-five miles an hour, neither knowing where they would pass each other, nor where they would pass the respondent, who was somewhere between them.

But independent of that fact, I am still of the' opinion that the conclusions reached in the divisional opinion is correct, and I therefore adhere to the views there expressed, and adopt that opinion as my dissenting opinion in Banc, which is hereto attached, and is as follows:

This is an action to recover damages for personal injuries sustained by plaintiff, inflicted by the alleged negligence of the defendant m running one of its freight trains against her on the 6th day of' September, 1906, near the city of Moberly, Randolph county, Missouri.

The suit was instituted April 20, 1907, in the circuit court of Adair county, and thereafter a trial was had which resulted in a verdict and judgment for the plaintiff fo.r the sum of $10,000. Prom that judgment the defendant duly appealed to this court.

Some twenty-five or thirty witnesses testified in the case, and, consequently the abstract of the record is quite voluminous, covering about two hundred printed pages. For this reason we will be able to state only the substance of the evidence; and as there is but little dispute as to the main facts of the ease, a more extended statement of the evidence will not be necessary. However, where there is a conflict in the testimony it will be duly noted in the opinion.

The facts of the case as disclosed by practically all of the evidence are as follows:

The track of the defendant company and that of the Missouri Kansas & Texas Railroad Company (which will hereafter be called the “Katy”) parallel each other for several miles, one hundred feet apart, and cross at grade a public highway, running east and west, a short distance south of Moherly, through a strictly farming community.

The plaintiff was struck and injured at a point about three hundred feet south of the crossing before mentioned, which is known as the “Headinghouse crossing.” At the place of injury the railroad tracks run through a quarter section of farm land, the Headinghouse crossing being on the north side thereof, and the Terrill crossing being another crossing on another public road a half mile south of the former crossing. The tracks were inclosed by good wire fences and cattle-guards. There were also public roads on the east and west sides of this quarter section of land, thus surrounding this tract of land by four public highways, all of which at the time of the accident were smooth, dry and in good condition. The track at this point had not been used by pedestrians as a public highway.

The following plat, introduced in evidence by plaintiff and marked “Ex. A.,” will shed much light upon the scene of the accident.

At the time of the injury plaintiff was eighteen years of age and was living with her brother, Roscoe Dutcher, a quarter of a mile north of the northeast corner of this quarter section of land, on the public road running north and south along the east side of this' quarter section. She was teaching school in a schoolhouse situated on the southwest corner of this same 160 acres.

About four o’clock p. m. on September 6, 1906, after the close of school, plaintiff with one of her pupils, ten years of age, a daughter of Frank Headinghouse, walked east on the public road on the south side of this tract of land until she came to the track of the Katy. At this point they crossed over the cattle-guard and walked north on said last mentioned railroad about a quarter of a mile, near the whistling post. At the latter point the plaintiff and the said little girl crossed over to the track of the defendant company, which was about one hundred feet east of the track of the former company. The plaintiff testified that as she crossed over to the track of the defendant company she looked north and south and saw no train on either road, and that her view was unobstructed both north and south for more than a mile. The track was practically level with a slight up-grade to the north. Upon reaching the track of the defendant company, she and the little girl proceeded to walk north, she between the rails and the little girl on the ends of the ties west of the west rail. At no time while so walking did plaintiff look or listen for a train behind her, though knowing she was on the main line of the defendant company leading from St. Louis to Kansas City, on which trains were hourly passing. Within a few minutes after they reached the defendant’s track an extra freight train from St. Louis rounded the curve three and a half miles south of Moberlv, and when a quarter of a mile south of Terrill crossing gave the regular crossing whistles, being two long and two short blasts. This train was composed of twelve cars, a caboose, engine and tender, and was about five hundred feet in length. Eight of the ears were equipped with air-brakes, and four of them were without air-brakes. At the whistling post, midway between the Headinghouse and Terrill crossing, the regular crossing whistles were blown for the former crossing. The engineer saw the plaintiff and the little girl walking along the -track in the manner before stated. He first saw them when he was about a mile from them. He testified that he had no reason to doubt that they had heard the signals and would leave the track, but almost immediately after giving the crossing whistles he began to think they had not heard them, and seeing that they did not look around or step aside he immediately applied the air in emergency, pulled the sand lever and began giving the danger signals and continued them until she was struck.

He also testified that when he applied the air the plaintiff was about six hundred feet in front of the engine. Practically all of the witnesses testified that the danger whistles were continuously sounded, and that the fireman rang the bell constantly until plaintiff was struck, which was at a point about three hundred feet south of the Headinghouse crossing. S. G-. Brown, a brakeman on the defendant’s train, was riding in the pilot of the engine and as the train approached the plaintiff he called to her at the top of his voice, warning her of her danger, but was unable to attract her attention.

Immediately before and at the time plaintiff was struck a freight train on the Katy was passing south. Practically all of the employees on this train saw the plaintiff, heard the danger signals given by the defendant for her, and several of them called to her and pointed back to the defendant’s train, warning her of its approach and of her danger. She saw and heard them but heeded them not, because as she testified, “I thought they were trying to flirt with me, so I. turned my face to the north and walked on. ”

Prior to the application of the air-brakes the defendant’s train was running from twenty-five to thirty-five miles an hour, and at the time it struck plaintiff it had slowed down to a speed of from sixteen to eighteen miles an hour.

The evidence also tended to show that this train, equipped as it was with due care could have been stopped in a distance of from eleven to twelve hundred feet, and within three hundred feet if the train was running only twelve miles an hour.. The engineer and fireman who were in charge of this engine testified that they did everything in their power to warn the plaintiff of her danger as soon as they had reason to believe she was not going to leave the track, and that immediately they employed all the appliances at their commmand to slacken the speed of and to stop the train, and thereby avoid striking her, but all to no avail, as the train was too near her to be stopped before striking her. The engine ran some six or seven hundred feet after striking the plaintiff, or some eleven or twelve hundred feet after the emergency brakes were applied.

I. Counsel for plaintiff base her sole -right to a recovery upon the last-chance or humanitarian doctrine.

The first insistence is that the verdict and judgment should stand, for the reason that the engineer in charge of the engine which struck the plaintiff testified that he saw her on the track for a distance of a mile before the train struck her, and that there was evidence tending to show that he failed to give her any warning whatever of the approaching train.

The evidence above referred to is the testimony of the witness Collins, introduced on behalf of plain tiff, who testified as follows:

“Q. State Mr. Collins, whether or not from the time yon first observed the train when it was about one-fourth of a mile from her as you have stated, whether or not from that time on until the time it struck her there was any whistling by the Wabash train? A. I heard the whistling, but don’t know which engine was doing the whistling. I heard whistling. I saw no steam from the Wabash whistle. I don’t remember of hearing any bell.”

If this had been all of Mr. Collin’s testimony touching that proposition it might have had some weight and probative force, but when read in connection with all of his testimony but little, if any, importance should be attached to it.

Previous to giving the above testimony Collins testified that he was a peddler and that at the time of the accident he was walking south on the Katy track, and saw plaintiff on defendant’s track. He stepped aside to allow the train on’the former road to pass; and that at the time he was two hundred feet north of the Headinghouse crossing, or about five or six hundred feet north of the point where the plaintiff was struck. He also testified that he did not remember whether he stepped off on the east or west side of the Katy train. But a little later on he further testified as follows:

“Q. Where was the Katy engine at the time she was struck? A. On the Katy track. “Q. I believe you located Miss Dutcher here somewhere south of the Headinghouse crossing, and you say, as I understand, the caboose of the M. K. & T. train was directly west to her — is that right? A. Did I say that?

“Q. Where was the caboose? A. A little south of her.

“Q. How much?, A. I have no idea.

“Q. Then you can’t give us any idea whether that caboose was ten feet south of her or one hundred feet or two or three hundred feet. A. No, it was not very far south of her.

“Q. Is that approximately correct? A. I was right square behind that train, how could I tell? If I had been at tbe side may be I could give you some idea. ’ ’

The evidence in the case, as well as Collin’s own testimony when all read together, conclusively shows that he stepped off on the west side of the Katy train, and that said train completely obscured his view of the approaching train on the defendant’s track. That being true, of course he could not state, as ho subsequently admitted, which engine gave the danger signals which he said he heard; nor could he, for the same reason, see the steam escape from the defendr ant’s engine had it done so. In fact, by reading Collin’s testimony it will be seen that he nowhere states that he was in position to see or that he looked at the defendant’s engine or at the escaping steam therefrom — he only stated that he saw no steam. That being true, as before stated, his evidence was insufficient to sustain a verdict, especially when the record discloses that a score or more of witnesses, some of whom were introduced by plaintiff and others by the defendant, testified that the danger signals were repeatedly given by the defendant company in ample time for the plaintiff to have stepped from the track.

This insistence is, therefore, ruled against the plaintiff.

II. It is next contended by counsel for plaintiff that the defendant was guilty of negligence in not slacking the speed of or stopping the train after its employees saw her in a place of danger, although they had ample time in which to have done so had they exercised ordinary care under the circumstances.

We are not certain that we clearly understand the position of counsel in the premises, which is stated hy them in the following, language:

“The M. K. & T. train was composed of twenty-five cars and an engine, and while a witness estimated it at about nine hundred feet in length, it must have been about ten hundred and fifty, certainly not less than one thousand feet long, and we shall hereafter .treat it as being one thousand feet in length.

“At the time of accident the M. K. & T. caboose was directly opposite or a little south of plaintiff, estimated.by the witness as being all the way from directly opposite to three hundred feet south of her. It is thus clear, being a fact physical in its nature, that from the time the firemen and other operatives on the M. K. & T. train began waving at plaintiff and the time she was struck said M. K. & T. train ran a distance of from thirteen hundred to sixteen feet.

• “It was proven by the plaintiff and admitted by the defendant’s witnesses that when the M. K. & T. operatives began waving at plaintiff the M. K. & T. engine was at the Headinghouse crossing, three hundred feet north of plaintiff, and when plaintiff was struck the M. K. & T. caboose was from directly opposite plaintiff to three hundred feet south of her.

■ ‘ The M. K. & T. train was running from fifteen to twenty-five miles an hour, and the "Wabash train was running from twenty-five to thirty miles an hour. Thus, while the M. K. & T. train was running the thirteen hundred to sixteen hundred feet the Wabash train necessarily moved a distance of from sixteen hundred to eighteen hundred feet.

“It is also true the conductor and brakeman in the M. "K. & T. caboose discovered plaintiff’s peril and began Avaving at her when they were as far away from plaintiff, or practically as far away from her, as the engineer in the' Wabash engine; therefore said Wabash engineer had as good an opportunity to see plaintiff and the little girl, and observe their manner and conduct, as the conductor and brakeman and other operatives in the M. K. & T. caboose.

“After the Wabash train struck plaintiff it ran a distance of seven hundred and forty to seven hundred and fifty feet before it stopped. This is evident because the train stopped so that the rear of the train was two carlengths south of the Heading-house crossing. Plaintiff was struck at a point three hundred feet south of the Headinghouse crossing. Said train therefore ran the length of the train and the distance between the point of accident and the rear end of the train at the place where it stopped, that distance being from seven hundred and forty to seven hundred and fifty feet. ’ ’

The foregoing process of locating the trains on the M. K. & T. and Wabash tracks, immediately prior to the accident, the rates of speed each was traveling and the place where the latter stopped after striking plaintiff forms the basis upon which the contention is made that the train which struck plaintiff must have run a distance of from sixteen hundred to eighteen hundred feet after the employees on the M. K. & T. road saw her perilous position, and at which time the servants in charge of the defendant ,’s train should have discovered it had they exercised! ordinary care, which would have given defendant’s servants ample time in which to have stopped the train before it struck her.

While counsel for plaintiff, in our judgment, have not fairly stated the substance of the evidence bearing upon the several propositions presented which constitutes the basis of their contention, but in lieu thereof have stated their own conclusions and deductions drawn from the evidence, but for the sake of argument we will suppose that the evidence did tend to support the second contention of counsel for plaintiff, as stated at the beginning of this paragraph; but in so doing we must not overlook the fact that simply because the engineer did not sound the danger signals or attempt to stop the train when he first discovered plaintiff on the track that was any evidence that he was guilty of negligence in that regard, for the reason that the law is well settled in this and other states, that the trainmen have the right to presume that adult persons walking upon the track for convenience can hear an approaching train and will heed all danger signals given, and will get out of its way. It is equally well settled that they may rely upon that presumption until they are informed or have reasonable grounds to apprehend such person is ignorant of the train’s approach, or that he has not heard the signals given. [Maloy v. Railroad, 84 Mo. 270, l. c. 275; Bell v. Railroad, 72 Mo. 50; Sinclair v. Railroad, 133 Mo. 233.]

In discussing- the foregoing principles of law, this court in the case first mentioned used this language:

‘ ‘ There is no evidence that it was owing to any neglect of duty that his danger was not discovered sooner. The engineer may have seen him, when he was two miles west of the trestle. Was it his duty then to stop the train or check its speed? He may have seen him when within a hundred yards; did the duty then arise to stop, o,r check the speed of the train? If the train men must stop the train or check its speed whenever they see a trespasser on the track, of what practical utility would railroad time tables be? The case, even with such of the additional evidence as could possibly have been admitted in the first instance, would hot have been such as to entitle plaintiff to a verdict. The train men have a right to suppose that adult persons walking upon their track for their convenience, can hear an approaching train, and will g'et out of its way. This train made such noise that persons a quarter of a mile further from it than the deceased heard it distinctly, and recognized it as the noise made by an approaching train.”

And in the second case cited, the court, speaking through Judge Napton, said: “It may he observed in advance of an examination of the real point and only point involved in this ease, that young Bell was guilty of the grossest negligence beyond all dispute, a negligence difficult to be accounted for, assuming him to have been a young- man of ordinary intelligence and without any defect of sight or hearing, and there was no proof that he was not. His father had recently moved into the neighborhood of Meadville, and he had never lived near to any railroadi before, and the boy was, therefore, naturally not familiar with their detailed operations. Still he must have known, without any such familiarity, of the danger of standing on a railroad track and of the necessity of watching for the approach of a train. He must have known that a person in such a position, to be safe, must use his eyes and ears. His attention was absorbed by a locomotive of a freight train on the switch south of the main track. My conjecture is that he believed that he was on a switch himself and that the main track was the one where he saw this train standing preparing to move. He must have heard the alarm whistle which was sounded repeatedly, at first at a distance of 600 feet, but, as I conjecture, thought the approaching train was on the same track with the train before him. It is true he did not hear the man who hallooed to him to get off the track, to look out for the train, because the wind was blowing rather strong from the west or northwest, but the sharp whistle used to alarm cattle would be far more distinct and powerful than a human voice, and could scarcely have been «unheard. He had time after the whistle was sounded to get oiff the track — he was near the south rail — and two steps would havé placed him out of the reach of the cars. .... The engineer had a right to assume, when the boy came in sight, that he would step off upon the sounding of the alarm whistle, and the only question in the case was, whether, upon seeing the boy’s position on the track, and that he persisted in staying there after repeated and continuous alarms of the whistle, the engineer did use all of the appliances in his power to prevent a collision, according to his best judgment. Judgment reversed and cause remanded.”

There are numerous other cases in this court announcing the same rule.

In passing we may with propriety state that in the case at bar the plaintiff did not make out as strong a case against the defendant as the plaintiffs did in the cases quoted from, for unquestionably she heard the danger signals, which were sounded several times, and saw the employees on the Katy train pointing to the approaching train on the defendant’s track; but, unfortunately for her, she disregarded them, believing doubtless, the blasts of the whistle were from the Katy train,- and that the gestures and warnings given her by the employees of the latter were flirtatious. All of this was the plaintiff’s misfortune, but in no sense was it the fault or negligence of the defendant.

But independent of that, the main reason why plaintiff should be denied a recovery in this case is, according to her own theory of the ease, she was guilty of the grossest kind of negligence, amounting almost to recklessness, which continued down to the place of and to the very instant of her injury, and directly contributed thereto. Upon this question the evidence was undisputed, that plaintiff crossed over the cattle-guards into the inclosed right of way of defendant, and walked about a quarter of a mile down the center of the trunk line of defendants without looking or ‘listening for approaching trains, notwithstanding she knew trains were hourly passing thereon, heedless of the danger signals given, which were continued down to the moment the injury occured, and equally unmindful .of the warning given her by the employees in charge of the Katy train.

1'f it should he conceded that the defendant, in the first place was guilty of negligence in not stopping or slackening the speed of the train in time to have prevented striking plaintiff, still it stands undisputed that she was given timely warning of the train’s approach, and that had she heeded that warning she would have had ample time in which to have stepped from the track, and thereby avoided the injury. Her failure to do so was clearly contributory negligence, if not the sole and proximate cause of her injury.

Upon this state of the record, according to the rule laid down by all of the best considered cases in this state and elsewhere, the plaintiff is not entitled to a recovery, for the reason that the humanitarian or last-chance doctrine has no application, but the law of contributory negligence governs.

"While I do not believe in the wisdom of the so-called humanitarian or last-chance doctrine, for the reasons I point out in the case of Murphy v. Railroad, 228 Mo. 56, since, however, none of my learned associates concurred in my views there expressed, that doctrine must be acquiesced in and accepted; by all as the settled law of this State, and I humbly bow thereto. But in doing so I recognize, as all others do, that there is at least an apparent conflict between some of the cases of this State bearing upon that subject.

The cleavage separating the humanitarian doctrine from the law of negligence and contributory negligence as hewn by this court has not at all times been as clear as it might be hoped for, consequently both ' the bench and the bar have met with much confusion and difficulty in its administration; and for that reason, even at the risk of being criticised for prolixity, I feel justified in stating the origin of the humanitarian doctrine, the reason for its existence, its growth and when applicable, as shown by some of the leading cases bearing upon that subject.

The humanitarian or last-chance doctrine had its origin in the year A. D. 1842, and was first definitely announced in the case of Davies v. Mann, 10 M. & W. 546.

Before stating the facts of that case, I desire to call special attention to the fact that the plaintiff’s negligence had culminated and ceased to be a factor in the case, and notwithstanding that fact, thereafter the defendant being concious of the peril of plaintiff’s ass, and that it could not save itself, drove his team and wagon over and killed it, without exercising ordinary care to save the brute. In the consideration of the cases, I hope the foregoing observations will be constantly in mind.

The case above mentioned established an important exception to the rule of contributory negligence, called by some the “humanitarian doctrine,” and by others the “last-chance doctrine.” The facts and opinion in the case mentioned are as follows:

“Plaintiff having fettered the fore feet of an ass belonging to him, turned it into a public highway, and at the time in question, the. ass was grazing on the off side of the road about eight yards wide when the defendant’s wagon with a team of three horses, coming-down a slight descent at what the witness termed a smartish pace, ran against the ass, knocked it down and the wheels passing over it, it died soon after. The ass was fettered at the time and it was proved that the driver of the wagon was some little distance behind the horses. The learned judge told the jury that though the act of the plaintiff in leaving the donkey on the highway so fettered as to prevent the getting out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40 s.”'

“Park, B. This subject was fully considered by this court in the case of Bridge v. Grand Junction Railway, 3 M. & W. 246, where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such that he could, by ordinary care, have avoided the consequences of the defendant’s negligence. I am reported to have said in that case, and I believe quite correctly, that “the rule is laid down with, perfect correctness in the case of Butterfield v. Forester, that, although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, he is entitled to recover; if by ordinary care he might have avoided them he is the author of his own wrong! In the case of Bridge v. Grand Junction Railway Co., there was imputing negligence on both sides; here it is otherwise; and the judge simply told the jury that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that if they were of the •opinion that it was caused by the fault of defendant’s servant in driving too fast, or which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man -might justify the driving over goods left on a public highway, or over a man asleep there, or the purposely running against a carriage going on the wrong side of the road.”

In Dyerson v. Railway, 174 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 133, this question is considered with much care and great force. "We quote from page 141:

“If in the present case the plaintiff was entitled to recover in spite of his own negligence, it must be because the order of its occurrence with respect to that of the defendant made the latter the proximate cause nf the injury. This, indeed, is his contention, and to support it, reliance is placed upon the following text, which was quoted with approval in Metropolitan Street Ry. Co. v. Arnold, 67 Kan. 260, and the substance of which is to be found also in volume 7 of the Encyclopaedia, at page 387; ‘And upon the principle that one will-be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered-the negligence, of the other, after its occurrence, in-time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in'not discovering the negligence of the other, under such circumstances, is held the sole proximate cause of the following injury.’ [7 Am. & Eng. Ency. Law, (2 Ed.), p. 387.] This may be accepted as a correct statement of a principle of universal application, according with both reason .and authority, provided the words “after its occurrence” be interpreted to mean after the person concerned had ceased to be negligent. The rule that under the circumstances stated the neglect of one party to discover the omission of the other is to be held to be the sole proximate cause of a resulting injury is not an arbitrary, but a reasonable one. The test is, what wrongful conduct occasioning an injury luas in operation at the very moment it occurred or became inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, hoivever, each, had such power, and each neglected to use it, then their negligence was concurrent, and neither can recover against the other. As is said in the paragraph from which the foregoing quotation is made: £It is only when the negligence of one party is subsequent to that of the other that the rule can be invoked.’ In a note printed in volume 2 of the supplement to the American and English Encyclopaedia of Law, (2 Ed.), at page 64, many recent cases are cited bearing upon the subject and it is said: ‘This so-called exception to the rule of contributory negligence (i. e., the doctrine of the last clear chance) will not be extended to causes where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence. ’

“In the present case it may be granted that the negligence of the plaintiff began when he walked between the track and the ice box on the way to get the bucket, and that the employees in charge of the engine were themselves negligent in not discovering this negligence on his part, and the peril to which it exposed him and taking steps to protect him. But his negligence as well as theirs continued up to the moment of the accident, or until it could not possibly be averted. His opportunity to discover and avoid the danger was at least as good as theirs. His want of care existing as late as theirs, was a concurring cause of his injury, and bars his recovery. This determination is entirely consistent with what Mr. Thompson in his work above cited, sec. 240, has styled the “last chance” doctrine, as is obvious from a consideration of the terms in which it is stated. As originally announced it was thus phrased: ‘The party who has the last opportunity of avoiding accident is not excused by the negligence of anyone else. His negligence and not that of the one first in fault is the sole proximate cause of the injury.’ Mr. Thompson rewords it as follows: ‘Where both parties are negligent, the one that had the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is solely responsible for it — his negligence being deemed the direct and proximate cause of it.’ Expressions are to be found in the reports seemingly at variance with the conclusion here reachedi, but for the most part the decisions holding a defendant liable for failure to discover and act upon the plaintiff’s negligence were made in cases which were, in fact like Metropolitan Street R. Co. v. Arnold, supra, or were decided upon the theory that they fell within the same rule. There the plaintiff’s decedent while riding a bicycle was, through his own fault, run into by a street car. He clung to the fender, was carried some seventy-five feet, then fell under the wheels andl was killed. A judgment against the street car company was upheld only upon the theory that after he had reached a position of danger from which he could ^not extricate himself — that is, after his negligence had ceased, the defendant’s employees were negligent in failing to discover his peril and stop the car. In Robinson v. Cone, 22 Vt. 213, 223, 54 Am. Dec. 67, the writer of the opinion says: ‘I should hesitate to say that, if it appeared that the want of ordinary care on the part of the plaintiff, at the very time of the injury, contributed either to produce or to enhance the injury, he could recover because it seems to me that is equivalent to saying that the plaintiff by the exercise of ordinary care at the time, could have escaped the injury.’

“The principle thus intimated was embodied in a decision'in French v. Grand Trunk R. Co., 76 Vt. 411, 58 Atl. 722, where it said: ‘It is true that when a traveler has reached a point where he cannot help himself, cannot extricate himself, and vigilance on his part cannot avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury, and will not preclude a recovery; hut it is equally true that if a traveler, when he reaches the point of collision, is in a situation to help himself and, by vigilant use of his eyes, ears and physical strength, to extricate himself and avoid injury, his negligence at that point will prevent a recovery, notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. In such a case the negligence of the plaintiff is concurrent with the negligence of the defendant, and the negligence of each is operative at the time of the accident. When negligence is concurrent and operative at the time of the collision, and contributes to it there can be no recovery.’

“To the same effect are these extracts: ‘There is no testimony suggesting negligence on the part of the driver that does not convict Doyle of an equal or greater degree of negligence. One had no better opportunity to anticipate the accident, nor any better means of preventing it than the other. If, therefore, there was. negligence, it was concurring negligence, continuous and mutual up to the instant of the accident which disentitles the plaintiff to recover. [Consumers’ Brewing Co. v. Doyle, 102 Va. 403, 46 S. E. 391]. In numerous cases it has been held that the plaintiff’s conduct is not contributory negligence, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in position of threatened contact with some agency, under the control of the defendant, when the plaintiff cannot, and the defendant can prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual ■ carelessness an injury ensues to one or both of them.....The rule does not apply where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, andl was a contributing cause thereof.’ [Robards v. Indianapolis Street Ry. Co., 32 Ind. App. 297, 66 N. E. 66, 67 N. E. 953]. ‘The plaintiff must show that at some point of time, in view of the entire situation, including the plaintiff’s negligence, the defendant was thereafter culpably negligent, and its negligence the latest in the succession of causes. In such case the plaintiff’s negligence would not be proximate cause of the injury .... The plaintiff not only negligently put himself in a place of peril, but continued negligently to move on to the catastrophe until it happened. The language of the doctrine of prior and subsequent negligence implies that the principle is not applicable when the negligence of the plaintiff and that of defendant are practically simultaneous.’ [Butler v. Rockland, T. & C. Street Ry. Co., 99 Me. 149, 105 Am. St. Rep. 267, 58 Atl. 775.]

“In Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31, 101 Am. St. Rep. 68, 76 Pac. 724, it is said of the rule holding the defendant liable notwithstanding the contributory negligence of plaintiff: ‘It applies in cases where the defendant, knowing of plaintiff’s danger and that it is obvious that he cannot extricate himself from it, fails to do something which it is in his power to do to avoid the injury. It has no application, however, to a case where both parties are guilty of concurrent acts of negligence, each of which, at-the very time tvhen the accident occurs, contributes to it.’ Of the same rule it is said in O’Brien v. McGlinchy, 68 Me. 552: ‘This rule applies usually in cases where the plaintiff, or his property, is in some position of danger from a threatened contact with some agency under the control of the defendant, when the plaintiff cannot, and defendant can, prevent an injury. . . . But this principle would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.’ In Smith v. Norfolk & S. R. Co., 114 N. C. 728, 755, 25 L. R. A. 287, 19 S. E. 863, 923, the general rule is thus concretely stated: ‘Applying the rule which we have stated to accidents upon railroad tracks it may he illustrated as follows: First, there must he a duty imposed upon the engineer as otherwise there can he no negligence to which the negligence of the injured party is to contribute. The duty under consideration is to keep a vigilant lookout .... in order to discover and avoid injury to persons who may he on the track and who are apparently in unconcious or helpless peril. When such a person is on the track and the engineer fails to discover him in time to avoid a collision when he could have done so by the exercise of ordinary care, the engineer is guilty of negligence. The decisive negligence, of the engineer is when he has reached that point when no effort on his part can avert the collision. Hence, if A, being on the track and after this decisive negligence, fails to look and listen, and in consequence is run over and injured, his negligence is not concurrent merely, but really subsequent to that of the engineer and he cannot recover, as he, and not the engineer, .has ‘ the last clear opportunity of avoiding the accident.’ If, however, A is on the track . . . and while there, and before the decisive negligence of the engineer, he, "by his own negligence becomes entangled in the rails that he cannot extricate himself in time to avoid the collision and his helpless condition could have been discovered had the engineer exercised ordinary care, then the negligence of A would be previous to that of the engineer and the engineer’s negligence would be the proximate cause, he, and1 not A, having lost the clear opportunity of avoiding the injury. The same result would follow in the case of a wagon negligently stalled when no effort of the owner conld remove it, and there are other canses to which the principle is applicable.’ The principle running through these cases is reasonable, is consistent with the general rules that have met with practically universal acceptance, and, if adhered to, will correct a part of the confusion now attending the application of the law of contributory negligence. The judgment is affirmed.” '

There are able and quite exhaustive notes appended to this case, and to that of Bogan v. Railroad, 129 N. C. 154, 55 L. R. A. 418, written by the learned editor, reviewing’ all the decisions from the various states, as well as those of the Federal courts, showing that the prevailing rule is that if the negligence of the plaintiff or deceased continues down to the time of the accident the humanitarian or ’last-chance doctrine has no application.

The following quotation is from the last paragraph, col. 2, p. 422, of the Bogan case:

“But even when the essential prerequisite of a duty resting upon the defendant has been established, there is still another element that must appear before the doctrine can be applied, or at least before it can be applied so as to support a recovery. As already stated, the doctrine operates by characterizing the breach of duty on defendant’s part, intervening between the plaintiff’s negligence and the accident, as the sole proximate cause of the accident. In order that this condition may exist, it is obvious that the negligence of the plaintiff or deceased must be regarded as having expended itself and having culminated before the breach of the defendant’s duty or at least before the culmination of that breach of duty. If, notwithstanding a breach of duty on the defendant’s part, the' plaintiff’s negligence must be regarded as continuing up to the very instant of the accident, it is clear, either that the negligence of the parties is concurrent, and, therefore that a necessary prerequisite of the doctrine is lacking, or that the application of the doctrine will put the plaintiff himself in the position of having had, but for his own negligence, the last clear chance to avoid the accident, thereby making the doctrine operate against him. For instance, if a person in full possession of all Ms faculties is walking along a railroad track upon which he knows trains frequently pass, without paying any attention to his surroundings, and the engineer of an approaching train, by reason of the omission of his duty to keep a lookout, fails to see him, it would seem that the latter would have the last clear chance to avoid the accident, since it is apparent that if he discovers the train (which in the exercise of due care, he is bound to do), he can step from the track and avoid the collision after the train has reached a point at which no effort on part of the engineer can prevent a collision. In. the view most favorable to the trespasser, his negligence is, at least, concurrent with that of the engineer. Many of the courts which apply the doctrine seem to pay too little attention to this element. The North Carolina Supreme Court, however, while taking different views at different times as to when the negligence of the plaintiff or deceased must be regarded as coutinuing, and when it might be regarded as having culminated before the defendant’s negligence, have, nevertheless, recognized the importance of this consideration. Thus, the decision in Smith v. Norfolk & S. R. Co., 114 N. C. 728, 25 L. R. A. 287, 19 S. E, 863, 923, denying the liability of a railroad company for running over a drunken trespasser, lying asleep on the track, notwithstanding that the engineer was negligent in failing to see him, is upon the ground that the intoxication of the trespasser did not relieve him from the duty of exercising due care, and that a sober man in the same position would, by the use of his sen ses have perceived the approach of the train, and have been able to escape from the track after the engine had reached a point at which any effort on the part of the engineer to avert the accident would have been ineffectual. This decision was afterwards overruled by Pickett v. Wilmington & W. R. Co., 117 N. C. 616, 30 L. R. A. 257, 23 S. E. 264, owing to a change of view on the part of the court with respect to the effect of the defendant’s intoxication, the court taking the view in the latter ease that the trespasser’s negligence was not continuing, but culminated when he lay clown upon the track and became unconscious of the danger. A stronger case for holding that the unconsciousness of his danger on the part of a trespasser lying- on the track will relieve his negligence from its character as continuing negligence, is where, as was claimed in Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632 infra, 2, the trespasser had fallen on the track in a fit. In that case it was held that though the trespasser was negligennt in going upon the track in the first instance, he was not chargeable with continuing negligence if his helplessness was due to a fit, but that it would be otherwise if it was due to voluntary intoxication. Some of the decisions that deny the liability of a railroad company for running over a drunken trespasser lying on the track are explainable on the ground that the company owed no duty to keep a lookout for trespassers and others, as already suggested, upon the ground that the negligence was regarded as continuing. These cases may, therefore, be harmonized so far as the doctrine, of “last clear chance” is concerned, with cases that hold the company liable under such circumstances.

“If the view of the doctrine of East clear chance’ herein suggested is corréct, it follows that a statement to the effect that contributory negligence will prevent recovery for any but a wanton or willful injury is, when strictly construed, entirely consistent with the doctrine of East clear chance,’ even when the gravamen of the action is negligence. It is probable, however, that in some cases, in which such statements are made the court intended to deny any such qualifications of the doctrine of contributory negligence as that involved in the doctrine of ‘last clear, chance.’ In many of the cases, however, in which such statements are made, it is clear that negligence of the plaintiff, though it began before the defendant’s breach of duty, nevertheless continued up to the very instant of the accident, and was, therefore, subsequent to, or at least concurrent with the defendant’s negligence. When that is the case, it frequently happens that the court simply applies the doctrine of contributory negligence without referring to any qualification of that doctrine, except that it does not prevent a recovery where the injury is willful or wanton. While that manner of treatment is perfectly consistent with the doctrine of ‘last clear chance,’ if the view herein suggested is correct, it is nevertheless calculated to mislead one, unless he keeps clearly in mind that tbe non-continuance of the-plaintiff’s negligence is an indispensable prerequisite of the doctrine. It would promote clearness of view if the courts in such cases, instead of passing over the intermediate steps and going directly to the doctrine of contributory negligence, would discuss the case from the point of view of the doctrine of ‘last clear chance,’ and show that while one of the indispensable prerequisites of that doctrine, namely, a breach of duty on defendant’s part, occurring after the commencement of plaintiff’s negligence was present, the other condition necessary to make the doctrine operate in plaintiff’s favor, namely, the cessation of plaintiff’s negligence at some time before the defendant’s, was lacking, and, therefore, that the doctrine could not apply at all, or, if applied, would operate against plaintiff, because he, and not the defendant, had the last clear chance to avoid the accident.”

In reviewing the Missouri eases, the learned editor at lower half col. 1, 451, says: “As already suggested, it is questionable whether the courts in this State have not in some cases applied the doctrine of Oast clear chance,’ so as to hold the defendant liable where, if proper attention had been paid to the question as to continuing negligence on the part of the plaintiff, the application of the doctrine would have placed the defendant, or deceased, as the case may be, in the position of having by his negligence lost the clear opportunity to avoid the injury. ’ ’

The conclusion to be drawn from all the authorities is that the humanitarian or “last chance” doctrine has no application, unless the negligence on the part of the plaintiff or deceased is to be regarded as having ceased before the termination of the defendant’s negligence.

See also a discussion of Davies v. Mann, 1 Thomp. Neg., sec. 235, et seq. In section 237, Judge Thompson says:

“It is believed that these considerations fairly conduct us to the following rules: 1. If. A and B have both been guilty of negligence contributing or tending proximately to produce the injury complained of, A cannot recover damages of B unless, after discovering the enclosed situation of A, B could have avoided the consequences of A’s negligence — that is, could have avoided the injury which took place — by the exercise of ordinary care. 2. One person is not bound to anticipate that another person, being sui juris, will negligently expose himself or his property to injury, and is not bound to make provision against the consequences of such negligence. Therefore, if A has negligently placed his person or his property in such a situation that B is liable to injure it in the exercise of his lawful business, and B, without discovering that A has done this, so injures it, B is not bound to pay damages to A, although at the time he committed the injury lie was not proceeding with ordinary care The foundation of this rule was thus lucidly stated by Peters, J., spealdng for the Supreme Judicial Court of Maine: ‘In cases falling within the foregoing description, where the negligent acts of the parties are distinct- and independent of each other, the act of the plaintiff preceding that of defendant, it is considered that the plaintiff’s conduct does not contribute to produce the injury if notwithstanding his negligence, the injury could have been avoided by the use of ordinary care at the time by the defendant. This rule applies usually in cases where the plaintiff or his property is in some position of danger from a threatened contact with some agency under the control of the defendant, token the plaintiff cannot, and the defendant can, prevent the injury. . . . But this principle would not govern where both parties are contemporaneously and actively in fault, and, by their mutual carelessness, an injury ensues to one of both of them. ’ This qualification of the rule is aptly illustrated by the case of a collision between a traveler and a train at a railway grade crossing. The traveler fails to exercise his faculties to discover the approach of a train, and those in charge of the train fail to give the proper signal on approaching the crossing. When he discovers the train on the.one hand, and when the trainman discover him on the other, it is too late to avoid the collision. In such a case unless the doctrine of contributory negligence is abolished, there can be no recovery. The negligence of each is a proximate cause of the catastrophe; the negligence of one is just as near the catastrophe as that of the other. But the courts which adhere to the rule which requires knowledge on the part of the defendant of the exposed position of the person killed or injured as contradistinguished from the duty of knowing, maintain the theory that where one person negligently comes into a situation of peril before another can be held liable for an-injury to Mm, it must appear that the latter had knowledge of his situation in time.to have prevented the injury, or it must.appear that the injurious act or omission was hy design, and was such, considering time and place, as that its natural and probable consequences would he to produce serious injury.”

This identical question came before this court in the case of Sinclair v. Railroad, 133 Mo. 233. It was there held that where the engineer sees that the trespasser is not informed as to his peril, it is the former’s duty to give the latter a sufficient warning, and in time for him to leave the track in safety; and that if the engineer performed that duty, the plaintiff could not recover, provided his negligence continued on doivn to the time of the injury.

Judge Macfarlane, in discussing that question, used this language:

“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 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 reqmredi such a signal as could have been heard and could not have been misunderstood; such an one would arouse deceased from his apparent mental abstraction or indifference to a sense of Ms 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 neighborlioocl. 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.

“II. 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, 10 Mo. 235.] Assuming, then, that the engineer saw deceased as 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. Railroad, 110 Mo. 279.]

“In another case it was said: ‘When plaintiff stepped on the track, it was the engineer’s duty tc warn. Mm, 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. Railroad, 114 Mo. 405.]

“In that ease 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.’

“Prom 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 féet 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.

“HI. 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 engine 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 farther, before its motion could have been retarded. The 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, a very little over the shortest estimated distance. But, conceding that the train could have been stopped in six hundred 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 toward 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.

“IV. This conclusion obviated the necessity of considering the contributory negligence of deceased after the signal was given. It was certainly Ms 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 conclude 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 toward the left rail, and when struck was outside 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. ’ ’

The same rule was announced by this court in the case of Prewitt v. Eddy, 115 Mo. 283. Gantt, P. J., on page 303, in speaking for the court said:

“In Fielder v. Railroad, 107 Mo. 645, we held that the facts of that case showed that the engineer saw the girl for six hundred feet, and that he sounded the alarm (at a distance of thirty-five feet); that the girl gave no sign of having heard it. We held that she was then in peril, and as a reasonable man he should! have then checked his train. (Train running twelve to fifteen miles per hour in St. Louis.)

“In Boyd v. Railroad, 105 Mo. 371, the plaintiff’s husband stepped upon the track of a railroad running through the town of Renick immediately in front of a train running forty miles an hour. The evidence tended to show that he both heard and saw the train. Brace, J., in writing the opinion of the court, says there were two explanations of the conduct of deceased. One was that ‘dominated perhaps by the first impression received in the house when he heard the whistle, that this was the regular mail (which as a hotel-keeper he was in the habit of meeting) he hastened toward the depot and onto the track without stopping for a moment to test by sense of sight or sound the correctness of his first impression, and as the result of his heedlessness lost his life.’ The other view, that ‘he may have miscalculated his own speed and that of the train and hazarded the chance of getting across the track in safety before the engine could strike him. In' either view his death was the result of his own negligence.’ And says: ‘It must be conceded that if the defendant’s liability in this case is to be limited, as in all similar cases heretofore it has been, to want of care on the’ part of its servants after they discovered, or by the exercise of reasonable care might have discovered, the deceased in a perilous situation, the plaintiff’s evidence wholly failed to make out a case.’ See cases cited. The learned judge concludes the case with the observation, ‘ Unless the doctrine of contributory negligence is to be entirely discarded, and engineers required to be such expert psychologists as to be able to read the minds of men and know before hand when a man in the possession of all his mental factulties is going to act in a way other than could be expected of an ordinarily prudent man, there was no evidence to take this case to the jury.’ ”

The same question was again presented in Hogan v. Railroad, 150 Mo. 36, and on page 55, Marshall, J., in speaking for the court, said:

“"Where both parties have been guilty of negligence, which directly contributed to cause the injury, there can be no recovery, for the courts never undertake to sever, apportion and discriminate between two directly negligent acts so as to decide which act caused the injury. There is no comparative negligence in this State. . . .

“The rule that the negligence of the plaintiff which contributes directly to the cause of the injury will prevent a recovery, is without exception or qualification. [Dunkman v. Railroad, 16 Mo. App. 548; Ibid., 95 Mo. 232; Craig v. Sedalia, 63 Mo. 417; Barton v. Railroad, 52 Mo. 253.] Where the negligence of the plaintiff directly contributed with that of the defendant to produce the injury, there can be ’no recovery. [Murray v. Railroad, 101 Mo. 236; Kellny v. Railroad, 101 Mo. 67.] So if the negligence which produced the injury is mutual, the plaintiff can not recover. [Packet Co. v. Vandergrift, 34 Mo. 55; Callahan v. Warne, 40 Mo. 131; Corcoran v. Railroad, 105 Mo. 399; Daugherty v. Railroad, 97 Mo. 647; 7 Am. & Eng. Ency. Law (2 Ed.), p. 371, etc.] ”

And in Tanner v. Railroad, 161 Mo. 497, Brace, P. J., in discussing the same question, said:

“As there was some evidence tending to prove that train number ten coming in on track number two was running at a rate of speed exceeding the maximum rate prescribed by the city ordinance, and that its bell was not being rung, the court committed no error in sending the ease to the jury, unless by these undisputed facts such contributory negligence on the part of the plaintiff is shown, as to preclude a recovery. That it is so shown is a conclusion as to which reasonable minds cannot well differ. The plaintiff, an adult in possession of all his faculties, familiar with the place, the time and movement of these trains, without looking or listening or paying any attention thereto whatever, deliberately placed himself in the line of danger of train number ten, coming- in on track number two, on time, and is struck, when by looking he could have seen, and by listening he could have heard that incoming train, and have avoided the danger- to which he thus voluntarily and unnecessarily exposed himself. A clearer case of contributory negligence could not well be made out. The only shadow of an excuse for such negligence is that he had heard that the bulletin said both trains were on time, and if this was so, then number nine having just come in, number ten would not be in for seven minutes. Hence he paid no attention to his danger from that train. He took no care whatever to verify this report, did not even look at his watch for that purpose. If he had, he would doubtless have discovered that number nine was in fact late, and that number ten was then nearly due. However that may be, while bulletins are required by law, and serve useful purposes, they can at best do more than predict, suggest a probability, as to the arrival of trains, and no man has a right to shut his eyes, close his ears and put himself in a place of danger on or near a railroad track on the faith of such a forecast. No reasonably prudent man will do so. Hence it must be held that the plaintiff was guilty of such contributory negligence, in being within the danger line of track number two, when he was struck, as to preclude a recovery, and that the court committed error in sending the case to the jury, unless after the plaintiff had thus put himself in a place of danger, the conduct of the defendant’s employees in the management of the train was characterized by such willful, reckless, or wanton diregard of human life, as that the defendant shall not be heard to say that the plaintiff was guilty of such negligence. [Morgan v. Wabash Ry. Co., 60 S. W. 195; Kellny v. Mo. Pac. Ry Co., 101 Mo. 67.] We have looked in vain through all the evidence in this voluminous record for indicia of such -willful, reckless or wanton disregard of human life upon the part of defendant’s servants. There was barely evidence enough to take the case to the jury on the main issues tendered by the plaintiff, and while there was some evidence from which the jury might have found that the train came into the depot grounds at a rate of speed slightly in excess of that prescribed by the ordinance, there is none to indicate a reckless rate of speed. It is also true that there was ample evidence from which the jury could have found that the place at which the plaintiff was struck was plainly visible to the defendant’s operatives on the engine, a sufficient distance for them to have safely stopped the train before it reached that place. But conceding all this, what would have been seen by the defendant’s servants at that place? No person on track number two on which the train was moving. The plaintiff and several other persons on the platform between that track and track number one, on which train number nine was standing, presumably prudent persons having a. proper regard for their own safety, and if any of them were within the line of danger from the approaching train, that they would he on the lookout for it, and would step out of its way as it approached them, and leave the way clear, and hence there would he no necessity for stopping the train on their account before reaching the usual stopping’ place some two or three hundred feet distant, where it did stop'. This would have been the conclusion of an ordinarily prudent manager of the movement of such a train, and the defendant’s servants thus managing the train in question cannot he convicted of a willful, .reckless or wanton disregard of human life in not stopping the triain before it reached the place where plaintiff was struck, because, forsooth, he proved to be an imprudent person without a proper regard for his own safety, and did not step ont of the way of the train, as he might easily have done, and as he would have been reasonably expected to do. The demurrer to the evidence ought, to have been sustained.”

And again Brace, J., in the case of Sharp v. Railroad, 161 Mo. 214, at page 237, said: “Of course it is impossible to say exactly at what distance the engineer discovered the exact situation of the deceased in regard to the danger line or at exactly what, distance from him the engineer gave the danger signal. But conceding that the situation of the deceased could have been discovered at such a distance as to have suggested the propriety of giving the danger signal sooner than it was given, and that it might have been sounded oftener than it was, there was nothing in the situation that seemed to imperatively demand that it should have been sounded sooner or oftener, and certainly nothing in the whole conduct of the engineer on the occasion that could be characterized as a willful, wanton or reckless disregard of human life, such as is necessary to take the case out of the general rule, that contributory negligence precludes a recovery. The court erred in overruling the demurrer to the evidence, and for this error the judgment will be reversed. All concur. ’ ’

And in an earlier case, Brace, J., said: “It will thus be seen that it was a physical impossibility for the deceased to have failed to see the approaching train, if he had looked in that direction, as it was his duty to do, while yet in a place of safety, and before entering upon the line of danger. Had he done so, there can be no question that he could and would have stopped his team until the train passed, and then crossed over in safety. But for some unexplained .reason he failed to do so. And thus it is, though the defendant may have been negligent in failing to give the signals for the crossing, and in permitting the high grass to be upon its right of way, yet the deceased havbug lost Ms life through his own negligence in failing to discharge the duty imposed upon him by law, in his situation, the plaintiff cannot recover for his death. This conclusion we find to be irresistible after a very careful examination of all the evidence, in the consideration of which every reasonable inference in favor of the plaintiff has been made. Consequently we cannot find that the trial court committed error in sustaining the demurrer to the evidence and in refusing to set aside the nonsuit.” [Hayden v. Railroad, 124 Mo. 573.]

In the case of Zumault v. Railroad, 175 Mo. 288, Btjrgess, J., in a learned and exhaustive opinion, on pages 311 to 313, in speaking for the unanimous court* in his usual clear and forceful manner, said:

“It is asserted by defendants that plaintiff was guilty of contributory negligence, Contributory negligence is defined as ‘ a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring’ with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.’ [7 Am. & Eng. Ency. Law (2 Ech), 371; Montgomery Gas Light Co. v. Railroad, 86 Ala. 372; Moakler v. Railroad, 18 Ore. 189 ; Woodell v. W. Va. Improvement Co., 38 W. Va. 23.]

“ ‘ If the plaintiff or party injuréd, by the exercise of ordinary care under the circumstances, might have avoided the consequences of the defendant’s negligece but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof.’ [Cooley on Torts (2 Ed.), 674.] The law will not permit a recovery where the plaintiff by his own negligence has contributed to produce the injury from which he has suffered. ‘And it matters not whether the contribution consists in his participation in the direct cause of the injury, or in his omission of duties which., if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong.’ [Little v. Hackett, 116 U. S. 371.]

“The record discloses that plaintiff, a man of mature years, in possession of all his faculties, with good eyes and hearing, familiar with the movements of trains, and, while momentarily expecting the arrival of one at the station upon which he intended to take passage, took a position on the platform so near the railroad tracks that a train could not pass without striking him, turned his face to the east when he was expecting a train from the west, and either fell asleep, or from some other cause became entirely oblivious to his surroundings, when by looking he could have seen the approaching train, or by listening he could have heard it. If such conduct was not under the circumstances contributory negligence, then the definition before given is inaccurate, for it clearly falls within it. In fact it is in effect admitted by counsel for plaintiff in his brief, that plaintiff was guilty of negligence in sitting upon the platform in the position he was in when struck, but plaintiff claims, that, notwithstanding his negligence, defendant’s servants and employees in charge of the train could have avoided injuring him by the use of ordinary care and diligence, such as sounding the danger signals or stopping the train after they saw him, or could have seen him in a perilous position, and having failed to exercise such care and diligence that he is entitled to recover for the injuries sustained by him by reason thereof.

“There was no evidence tending to show any willful, wanton or reckless disregard of human life on the part of the engineer in charge of the train that caused the injury.

“The engineer was plaintiff’s witness and testified that he was at his post of duty, and keeping a lookout ahead of him. His train did not stop. a.t this station, nor was any train due there at that time which carried passengers, so that he was not expecting any person to he on the platform, having no reason to anticipate their presence there. He testified that the first thing he discovered going to Elmdale was a man sitting on the platform with his head very low between his legs; he was facing the track, and was a foot or two from the end of the platform; that just about the time he saw him he struck him; was not over ten or fifteen feet from him when he first saw him, maybe not that much; that as soon as he saw him he applied the air; that he did nothing else, because he had no time until the engine struck him; that there was nothing to obstruct his view except plaintiff was' sitting in the shade of the platform; that after he saw the man he could do nothing to stop the cars except to put on the emergency brakes which he did.

“In this case the contributory negligence of the plaintiff is a complete defense to the action, unless the conduct of the servants of the defendants managing the train was characterized by such willful, wanton ox; reckless disregard of human life also contributing to his death as that the defendants ought not to be heard to say that the plaintiff was guilty of such negligence. ’ ’

Again in the case of Schmidt v. Railroad, 191 Mo. 215, at page 235, Gantt, J., in speaking for the court, said :

“Notwithstanding the conclusion we have reached, it is proper to note the contention of counsel for the plaintiff that the facts of this "case bring it within the principle of Harlan v. Railroad, 65' Mo. 22, in which it was said: ‘When it is said, in cases where plaintiff has been guilty of contributory negligence, that the company is liable, if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable, if by the exercise of reasonable care, after a discovery by defendant of the danger in which the injured party stood, the accident could have been prevented, or if the company failed to discover the danger through the recklessness or carelessness of its employees, when by the exercise of ordinary care would have discovered the danger and averted the calamity.’

“In our opinion the foregoing excerpt is inapplicable to the facts of this case. The engineer did not fail to discover the deceased near to and approaching the track, nor did he fail to discover the danger to the deceased by reason of any recklessness or carelessness on his part, but the testimony shows that he was keenly alive to the situation and immediately upon coming in sight of the deceased, sounded the alarm whistle and caused the bell to ring continually until he was struck. He had a right to presume that a mature person in broad daylight would not recklessly walk on a railroad track immediately in front of a rapidly moving train, and therefore, he only considered deceased was in peril when he discovered that in spite of the danger whistles and the ringing bell, the deceased indicated he was about to step on the track, but there is no foundation for saying that the engineer failed to discover this condition by reason of his reckless running. "While the speed of his engine was in excess of that prescribed by the ordinance, it was in no sense reckless. It was the usual rate maintained at this point and the brake was set and the speed was being lowered to stop at the station. The engineer and fireman were both at their post observing the track. The statement quoted from Harlan v. Railroad, 65 Mo. 22, has'no reference to such a state of facts as was developed in this case. Nor is this a case where a traveler has relied upon the presumption that the employees were obeying the law or ordinance and not running in excess of the speed prescribed and has on that account been caught on the track. This, as already said, is a case where a pedestrian has walked upon a railroad track in broad daylight without even looking to see if a train was approaching and when, if he had looked, it would have been a physical impossibility for him to have failed to see the train. There can be nó presumption in the teeth of the facts developed in this case that the deceased looked for a train. If he looked he saw the train, and if he saw it, .he recklessly and negligently put himself in front of it and was killed., when one step backward or the refraining of taking one step would have wholly averted his injury and death. The negligence of the deceased was concurrent in point of time with the negligent running of the train and was the direct proximate cause of his death.

“We con only account for the conduct of the old gentleman on the ground that he had become oblivious to his surroundings and ivas wholly unconscious of his situation.

“From whatever point of view we look at this record, we can but say that the deceased was negligent and that his negligence contributed to his death.

“It results that the circuit court erred in not sustaining the demurrer to the evidence and directing a ■judgment for the defendant, and its judgment is accordingly reversed. All concur.”

In Holland v. Railroad, 210 Mo. 338, Burgess, J., again speaking for the court, said:

“It is ruled in Harlan v. Railroad, 64 Mo. 480, that every person who goes on a railroad track, or purposes to cross it, must use his eyes and ears to avoid injury, and that every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to be on a railroad track when trains are passing to and fro, and when crossing one is expected to be vigilant and watchful of the approach of a locomotive. Failure to exercise such vigilance is negligence per se. These familiar principles have been many times announced by this court. [Taylor v. Railroad, 86 Mo. 457; Prewitt v. Eddy, 115 Mo. 283; Baker v. Railroad, 122 Mo. 533; Lane v. Railroad, 132 Mo. 4; Schmidt v. Railroad, 191 Mo. 215, l. c. 228.]

“Plaintiff, however, says that John Holland had the right to presume that defendant’s train would not be run at a greater rate of speed than five miles an hour, and to act upon such presumption until he knew, or by the exercise of ordinary care ought to have known, to the contrary. The only evidence with respect to the speed of the train at the time of the accident was the testimony of the fireman, and, as stated before, he testified that the train was not then running at a rate of speed exceeding five miles an hour. In all of the cases relied upon by plaintiff as supporting her contention, namely, Hutchison v. Railroad, 161 Mo. 246; Eckhard v. Railroad, 190 Mo. 593; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180, there was evidence tending to show that the train was running at a rate of speed in excess of that fixed by ordinance, or there was a failure to observe the requirements of the ordinance in some other respect. But even if the train in question was running at the time of the accident at a rate of speed in excess of that prescribed by the city ordinance (which we do not concede), and the defendant was, therefore, guilty of negligence per se, the conduct of the deceased in going u/pon the trach in proximity to the approaching train loas contributory negligence on his part, which negligence was the proximate cause of the injury.

“In Schmidt v. Railroad, supra, it is said: ‘The rule of contributory negligence is not chang'ed or abrogated by reason of a statute or ordinance imposing the duty on account of the violation of which the injury resulted. [Weller v. Railroad, 120 Mo. 653.] The statute does not absolve persons approaching a public railroad crossing from exercising common prudence to avoid danger, nor shift the responsibility to another should injury ensue from the failure to exercise it. [Kenney v. Railroad, 105 Mo. 284.] ’ The same rule is announced in the following cases: Boyd v. Railroad, 105 Mo. 381; Sweeney v. Railroad, 150 Mo. 396; Moore v. Railroad, 176 Mo. 546; Evans v. Railroad, 178 Mo. 508; Ries v. Railroad, 179 Mo. 1.

“There is no escaping the conclusion that the deceased saw the approaching train. He must, therefore, have been absorbed in other matters, or have misjudged the speed of the train and determined to take the risk of being caught by it before he could cross the track. But, whatever may have induced his action, his conduct can only be characterized as the grossest recklessness. The demurrer interposed by the defendant to the evidence should have been sustained. The judgment is reversed. All concur.”

In Felver v. Railroad, 216 Mo. 195, Lamm, J., expressly recognizes the doctrine that mutual and concurring negligence are fatal to plaintiff’s recovery, and that unless after the engineer saw or might have seen that she was in a position of peril and would not extricate herself therefrom, she could not recover. In his clear and inimitable style he stated the rule as follows:

“ ‘Although y&u may believe from the evidence that the death of the plaintiff’s husband was caused by defendant’s negligence, yet if you further believe from the evidence that the deceased was guilty of negligence in driving upon the railroad track, and such negligence was concurrent with that of defendant, your verdict must be for the defendant.’

“The court refused it in that form but amended it by inserting before the words ‘your verdict’ the* words ‘and that deceased’s negligence in being upon the track was the proximate cause of his death’ and gave it as modified. Complaint is made of the modification. Of this complaint we observe: The instruction was properly refused at the outset. The law of the concrete case had been given on behalf of defendant in its eighth instruction,’ viz.;

“Lyman. A. Felver, the deceased husband of plaintiff, was required under the law to exercise ordinary care — that is, such care as a reasonably prudent person under like circumstances would have exercised for his own safety, and unless he did so, the plaintiff cannot recover.

“It was his duty before driving on or so near the track as to be struck, to look and listen for passing cars, and unless you shall find from the evidence he-did both look and listen, and looking could not see, or listening could not hear, the approaching car, then plaintiff cannot recover and this is true even though you may believe that the car was being run at a rapid rate of speed and the gong was not.sounded; unless you shall further believe that after the motorman saw or might have seen that Felver, the deceased husband of plaintiff, was in a position of peril and would not extricate himself therefrom, he had time to have stopped the car before striking the wagon, with due regard to the safety of the passengers and negligently failed to do so, and unless you so believe, your verdict will be for the defendant, and on this issue the burden of proof rests upon the plaintiff.’

“The sixth instruction could only have the effect of bothering the jury in trying to reconcile its verbiage with the eighth. But counsel argue that, as given, it was bad and held out a false light to the jury. They say it told the jury that decedent’s contributory negligence before it could operate as a defense must be the proximate cause of his death. They say that is not * the law. That the correct rule is that where the negligence of decedent directly contributed with that of defendant to produce the injury there can be no recovery. [Hogan v. Railroad, 150 Mo. l. c. 55, and authorities cited.] True it is that if there is mutual concurrent negligence in both parties there can be no recovery. True, there is no comprative negligence in this State. True it is that concurrent negligence, that is, coincident in time and place, defeats recovery. Bnt this case, as said, proceeds on the assumption that Mr. Felver was guilty of an antecedent act of negligence. It proceeds on the assumption that if defendant, after it had the last clear chance, neglected under'the humanitarian rule to see his peril and avoid his injury by the exercise of ordinary care, then there should be a recovery. Keeping that distinction sharply in mind, while the amendment in terms was unhappy in the use of learned terminology, yet we cannot see how it materially affected the merits of the case when considered with defendant’s eighth instruction, and with the whole trial theory of the case.

In Laun v. Railroad, 216 Mo. 563, at 578, Graves, J., said:

“Plaintiff’s evidence is divisible into two classes, i. e., some witnesses say that deceased did not look until he got on the main track, or at least their language might by a strained construction be so con-' strued, whilst others say he stopped and looked east, while he was between the two tracks. Grant it that deceased did not look for an approaching train until he was in fact, upon the main track, what is the status of the plaintiff’s case? If deceased failed to look and listen for an approaching train then he was guilty of negligence which would bar plaintiff’s recovery, although the defendant was at the time guilty of negligence in running in excess of ordinance speed. Such has always been the rule in this State. In Schmidt v. Railroad, 191 Mo. l. c. 228-9, we said: ‘The pivotal point upon which this ease must turn is, did the circuit court err in overruling the demurrer to the evidence? That the train was running in excess of the rate of speed prescribed by the ordinance of Jefferson City is conceded, and established by the testimony of the defendant’s own engineer and fireman, as well as that of the plaintiff’s witnesses. Such conduct on the part of the railway company was negligence per se, hut notwithstanding this neglect of the regulations in regard to the running of trains within the city limits on the part of railroad employees, the question still remains, was not the deceased’s own contributory negligence the proximate cause of his death?

“It is a settled law of this State that a person who goes upon a railroad track o,r proposes to cross it, must use his eyes and ears-to avoid injury. And while a neglect of the regulations in regard to the running of trains amounts to negligence in law on the part of the railway company, this does not absolve pedestrians and others who propose to cross the tracks from the exercise of ordinary care. Every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to he upon a railroad track when trains are passing to and fro, and when crossing one, he is expected to he vigilant and watchful of the approach of the locomotive. The failure to exercise such vigilance is negligence per se.” [Harlan v. Railroad, 64 Mo. 482.]

One of the clearest statements of the law made by this court, to which my attention has been called, governing the respective rights and: duties of railroad companies and trespassers walking upon their tracks is found in the case of Woods v. Railroad, 188 Mo. 229. On page 248, Vaxjjant, J., in discussing those questions, said: “If the jury came to the conclusion, on the defendant’s own testimony, that, after the engineer saw and realized the plaintiff’s danger, he could, by the exercise of ordinary care, have averted the accident with the means at hand, yet failed to do so, we are not prepared to say that their verdict was unwarranted. But we rest the case on the proposition that there was substantial evidence on the part of the plaintiff to justify the submission of the case to the jury on the hypothesis that the plaintiff’s foot had become fastened in the cattle-guard and she had fallen before the train came in sight and that the defendant’s servants saw her in peril and conld have stopped the train in time to have averted the accident but neglected to do so.”

And again on page 257 to 258 we find the following;

“The plaintiff’s case by her pleading, proof and instructions is based on the law as expressed by this court through Brace, J., in Kellny v. Railroad, 101 Mo. l. c. 74, as. follows: ‘We know of but one exception to the rule that where an injury is the product of the joint concurring acts of negligence of both plaintiff and defendant the plaintiff cannot recover, and that is an exeception made, on grounds of public policy and in the interest of humanity, to prevent and restrain, as far as may be, a willful, reckless or wanton disregard of human life or limb, or property, under any circumstances, and that is when the injury was produced by the concurrent negligent acts of both plaintiff and defendant, yet if the defendant before the injury, discovered or by the exercise of ordinary care might have discovered the perilous situation in which the plaintiff was placed by the concurring negligence of both parties, and neglected to use the means at his command to prevent the injury, then his plea of plaintiff’s contributory negligence shall not avail him. This exception proceeds not upon the theory that the defendant has been guilty of another and independent act of negligence which is the sole cause of the injury andi which must be charged as a separate and independant cause of action, but upon the ground that the negligence he was then in the very act of perpetrating was characterized by such recklessness, willfulness or wantonness as that he shall not be heard to say that the plaintiff was also guilty of contributory neg-' ligence. ’

“The case concedes the plaintiff’s negligence and asks to recover only on the ground that the defendant’s servants saw, or should have seen, her peril, and after becoming aware of it failed to avert the injury which they could have done with the means at hand if they had used ordinary care. That is the purport of the plaintiff’s instructions, and the jury were authorized to giye her a verdict only on satisfactory proof of such case. And the substance of the instructions given for the defendant was that the verdict should be for the defendant unless such case was proven; that if instead of the conditions asserted by the plaintiff the facts were that the girls were walking or running on the track when the train came in sight, the engineer gave the whistle of alarm which they disregarded and instead of stepping off as they could have done continued, to run in front of the coming engine and attempted to cross the cattle guard and plaintiff got her foot caught when the train was too close to be stopped in time although the engineer did his best to do so, then the verdict must be for the defendant.”

Fox, P. J., announced the same rule in the case of Brockschmidt v. Railroad, 205' Mo. 435; and there are a score or more of other cases where this court has expressed similar views. Among which is Everett v. Railroad, 214 Mo. 54.

Now, if we apply the rule announced in the foregoing decisions to the case at bar, which it seems to me we must, then it is perfectly clear that plaintiff must be denied a recovery, for the reason that she was guilty of the grossest recklessness in climbing over defendant’s cattle-guards, thereby trespassing upon its enclosed right of way and walking down its track a quarter of a mile without looking or listening for approaching trains, though full grown and possessed of all of her faculties, when she was perfectly familiar with the surroundings, and well knew that trains passed there hourly and were liable to approach her at any time. This reckless conduct of hers confessedly continued down to the very instant of the catastrophe; and even though it be conceded1 for the argument’s sake that the defendant was in the first place guilty of negligence in not stopping the train, or slackening its speed, still that concession- would avail her nothing, for the reason if that was true her negligence concurred with that of the defendant in point of time and place, and her injury necessarily was the result of their mutual negligence, which has always constituted a bar to a recovery in- this, as well as in other states.

The evidence is uncontradicted that defendant sounded the regular crossing whistles at both the Terrill and Headinghouse crossings, which she could have heard had she been listening and paying proper care for her own safety. Everyone else in that vicinity heard them, and many of them were much further away. Both the engineer and fireman who were in charge of the engine which struck plaintiff testified that the bell was rung and the danger whistle was .repeatedly sounded from the time they first had reason to apprehend she was not going to leave the track until she was struck. The engineer also testified that he first gave the danger signal when he was about- six hundred feet from plaintiff and kept it up until she was struck, and there is no direct evidence which contradicts either of those witnesses, and none other for that matter except the deductions drawn by counsel for plaintiff from the comparative speeds of the two trains, before mentioned, which are entitled to but little weight, for the reason pointed out in a previous paragraph, and for the additional reason that opinions formed regarding the relative position of trains running at full speed in opposite directions, and as to the rate of speed of each, at best rises but little, if any, above the dignity of pure conjecture, especially when formed in the midst of a catastrophe when all eyes and attention are riveted upon the unfortunate victim thereof, as was the case here.

By so viewing this record it practically stands undisputed that plaintiff was repeatedly warned of her perilous position by the blasts of the whistle and the ringing of the bell from the time the engine got within six hundred feet of her down to the moment she was struck.

A score or more of other persons who were no riiore favorably situated than was the plaintiff heard these signals, and doubtless she could and would have done so had she been exercising ordinary care and reasonable prudence for her own safety. But whether she did or not is wholly inmaterial in so far as defendant is concerned, for it discharged its full duty toward her by timely warning her of her perilous position.

If the train which struck plaintiff was running thirty miles' an hour, which the evidence tended to show, then at the time of the injury it was running at a speed of about forty-four feet to the second, and consequently it must have taken about fourteen seconds for it to have run the six hundred feet just prior to striking her; and if the plaintiff was walking at an ordinary gait of four miles an hour, then she was moving about six feet a second, and consequently she must have walked down the track about eighty feet while the train ran said six hundred. Had she during that same time turned to the right o,r left, and that, too, without changing her gait, she would not only have cleared the track and been in a place of safety, but would have been about seventy-five feet either east or west of it when the train passed. This not only shows that the defendant gave her timely warning, but also proves that she was at least guilty of contributory negligence which directly contributed to her injury, if not guilty of the sole negligence which was the proximate cause thereof.

We are therefore, of the opinion that under no view of the case was the plaintiff entitled to a recovery, and for that reason the trial court should have sustained the demurrer to the evidence.

There are many other propositions presented and discussed by counsel for both plaintiff and defendant, but the conclusions before announced render it unnecessary to pass upon them.

The judgment of the circuit court should be reversed, and judgment here rendered for defendant.

Case Details

Case Name: Dutcher v. Wabash Railroad

Court Name: Supreme Court of Missouri

Date Published: Mar 1, 1912

Citation: 241 Mo. 137

Court Abbreviation: Mo.