GOODE, J.
Tbe general principle on which tbe case was referred to tbe jury, commonly styled tbe humane doctrine, is well supported by authorities. It is accepted in some form in most of tbe State and Federal jurisdictions. So far as this court is concerned, tbe rule is no 'longer debatable. All uncertainty about it being a substantive part of tbe law of torts has been set at rest by recent deliberate pronouncements of tbe Supreme Court. Tbe authority of tbe rule is not impugned by tbe learned counsel for tbe appellant, who only insist that it is inapplicable to tbe cause in band on account of tbe plaintiff’s clear contributory negligence which continued to tbe moment of tbe collision. This contention requires a brief examination of some cases in which tbe t doctrine has been applied. *381They divide into two classes and the disputation which has raged over it has been on the border line between the two. As enforced in one class, the rule has always seemed to the writer to be a phase of the doctrine of proximate cause, consistent with the theory of the entire law of negligence and with • out which the system would be incomplete. These, instances are where the plaintiff’s negligent act was detached from the injury so that the defendant’s want of care was the sole active agency in inflicting it. When an accident happens under such circumstances, the plaintiff ought not to be refused a recovery because, though remiss, his fault does not contribute to the injury. Hlustrations of this class of cases are numerous in the books, beginning with the one from which all the others proceeded. Davis v. Mann, 10 Mees. & W. 546, where the plaintiff had carelessly fettered his beast in the highway and the defendant’s servant drove over him. It is manifest that the original negligence of the owner was separated from the injury, which was proximately caused solely by the defendant’s tort. Another apt illustration is found in the Reardon case (114 Mo. 384), where the plaintiff carelessly went on the railway track and fell in endeavoring to get off when he saw a train coming. It was held that if the engineer failed to employ ordinary care to stop the train when he saw him prostrate, the company was liable. The same ruling has been made in actions where plaintiffs had fallen asleep on tracks or become fastened in cattle guards or switches or where the person hurt was a child or otherwise not of full legal capacity (Gabel v. Railway Co., 60 Mo. 475). The doctrine is exclusively met with, so far as our reading has shown, in controversies arising from injuries due to violent impacts and collisions. The above instances exemplify its use in such cases where, properly expounded, it does not clash with the doctrine of contributory negligence, though some of the applications made have laid it open to that charge. *382The reconciliation and harmonious working of the two rules may be achieved by considering closely whether the defendant’s carelessness was alone the proximate cause of the injury. If only the defendant’s was the proximate cause, the plaintiff, while guilty of negligence, was not guilty of contributory negligence; his failure to use care did not proximately contribute the mischief. Time elapsed between his wrongful act and the injury, during which the wrongful act of the defendant supervened or entered, as a separate agency, which, by its own independent action, wrought the unfortunate-result. If, however, the plaintiff’s want of care continues to the instant of the accident, or so near the instant as to be immediately influential in producing it, he is as much to blame as the defendant, and if the latter is compelled to compensate him, the theory of the law of negligence is thus far abandoned. When it is deemed expedient to allow a recovery under such circumstances, it must be done as a measure of public policy. The rule then becomes, in fact, an exception to the law of contributory negligence, as was said in Kelly v. Railway Co., 101 Mo. 67. The real basis of it, as it obtains in many jurisdictions in respect to injuries by cars and locomotives when the injured individual was negligent to the very instant of the collision, is to be sought, on an ultimate analysis, in its supposed necessity for the public security. The guilt of the plaintiff is excused, while that of the defendant is punished. In such instances, its administration in cases of injuries by cars and engines is attended with serious difficulty, viz.: determining when the employees of the railway'company may be justly said to have had notice that the injured party was in a position of danger. Persons frequently remain on railway tracks when a car or train is approaching, until it would be impossible to stop it in time to avoid striking them, but easily get off themselves in time. Accustomed to take care of their safety where cars are con*383stantly moving, they grow dexterous in avoiding them and run risks. Engineers and motormen have a right to presume an individual travelling on the track will leave it, and to act on that presumption until his situation becomes alarming. Riley v. Railway Co., 68 Mo. App. l. c. 661. Just when this happens must often be largely conjectural, which circumstance weighs heavily with many against the rule in question.
The doctrine in its wider scope prevails in this State. The plaintiff may recover, notwithstanding hisi negligence directly contributed to his hurt, if the defendant by ordinary care could have prevented the accident. In the Morgan case (60 S. W. Rep. 195), where a recovery was sustained, this language is spoken: “There can be no doubt, under the evidence, that the death of the plaintiff’s husband resulted from the negligence of the defendant’s servants in charge of the train, and the negligence of the deceased himself contributing theretoSimilar expositions have been made in many other eases. Schmidt v. R’y Co., 50 S. W. 921; Klockenbrink v. Railway Co., 81 Mo. App. 351; Cooney v. Railway Co., 80 Mo. App. 226. They seem in conflict with the opinion in Hogan v. R’y Co., 150 Mo. 36. We must follow the latest controlling decision. The Morgan ease was decided in Banc.
In view of the strong utterances to be found in the foregoing authorities, it is useless to descant on the wisdom or fallacy of the rule, to explore its foundation, extol its justice, or regret its hardship. Our unmistakable duty is to enforce it as we would any other part of the law. The present case differs in no material respect, calling for its application, from the Morgan or Cooney cases, supra, which became therefore controlling precedents. The Morgan case is stronger because there the engineer did not see the deceased, who was flagrantly careless to the time the engine struck him; here the motorman did not see the plaintiff. The court below did not err in re*384fusing an instruction to find tbe issue for tbe defendant, but rightly submitted them. This practically disposes of the case.
Complaint is made that error was committed by refusing two instructions, the effect of which was that the issues should be found for the defendant if the jury believed the plaintiff was not driving on the railway until he attempted to drive across it at the intersection of the two avenues. The answer is that two others were given which fully covered the ground.
It may be remarked that there is a material difference between the case of a plaintiff who suddenly drove on a railroad track in order to cross it and that of one who has been driving along the track for sometime and then attempts to drive off. In the first instance, the railway operatives may have no such warning nor chance to take precautions against striking him as they are likely to have in the latter, where he has been in full view for awhile, with the possibility of his situation becoming dangerous obvious to them.
The direction as to the measure of damages is’ criticised, principally because it told the jury that in no event should their “verdict be for more than ten thousand dollars, the amount sued for,” when in fact the amount sued for was twenty thousand dollars. It is inconceivable how this simple mistake could have harmed the defendant. The verdict was for eight hundred dollars and there is no claim that it was excessive.
We find no error in the record. The judgment is affirmed.
All concur.