REYNOLDS, P. J.
(after stating the facts). — In their argument before us the learned counsel for appellant state that the only points they urge on this appeal are that the lower court committed error in overruling the demurrer to the evidence, asked by defendant at the close of plaintiff’s ease and also in overruling that demurrer when it was again offered at the close of all the testimony.
It is argued that these demurrers should have been sustained because, first, there was no evidence that defendant was guilty of any -negligence in the [327]*327premises, and'secondly, plaintiff’s own evidence shows he was guilty of contributory negligence in approaching a dangerous crossing which could not be seen by the trainmen until they were close upon it, at full speed and without having his train under control and also in jumping through the window of the cab while the train was going at a high rate of speed. Counsel for appellant further state that the court submitted the case to the jury on the theory that defendant was negligent in two particulars, namely, first, in not warning approaching trains of the obstruction, and secondly, in failing to remove the obstruction from the crossing. It may be said here that the assignment of negligence in going upon the track and in the manner in which defendant’s employees approached the track with the traction engine and the separator is out of the case, there being no claim that there was any negligence connected with that. It seems hardly necessary to cite authority in support of the rule that, defendant, not standing on a demurrer to plaintiff’s evidence in chief and then producing evidence, has waived the first demurrer. [See Frye v. St. Louis, I. M. & S. R. Co., 200 Mo. 377, 1. c. 381, 98 S. W. 566.] We concern ourselves then with the demurrer at the close of all the evidence.
If we are to adopt the theory of the learned counsel for appellant, it would require us to hold as a matter of law, that after the employees of defendant found that the separator was blocked on the track and after they heard the approach of the train, they had used due diligence and taken proper and prompt steps to warn those in charge of the approaching train of the obstruction; that we should hold, as a matter of law, that defendant used due diligence in attempting to remove the obstruction from the crossing after the wheels of the separator had become blocked; that we should hold as a matter of law that plaintiff was guilty of contributory negligence in respect to those acts of [328]*328negligence with which he is charged. ~W e cannot agree that under the evidence in this case these are matters of law.
What is negligence in a given case is a matter of law, but the determination of the facts constituting negligence or due diligence are for the jury. The second instruction given at the instance of defendant itself practically concedes this. That instruction tells the jury, “that the only issues before you are whether or not the servants and agents of the defendant were negligent in failing to remove the separator from the railroad track before the collision occurred; and whether or not the said servants and agents exercised ordinary care to notify" the station agent at Eureka and warn approaching trains of the obstruction on the track; and whether or not the plaintiff was guilty of negligence directly contributing to Ms injuries, either in failing to see and heed the signals given him and the obstruction on the crossing in time to have averted the collision or in running his train at a high rate of speed in approaching said crossing, or in jumping from the cab of the engine while the train was running at a high rate of speed, as the above issues are defined in other instructions.” It may be said as to the definitions referred to as covered by other instructions, no complaint whatever is made of them and, as before said, the only error assigned here is in overruling the demurrer to the evidence. That the evidence is conflicting on the issue as to whether the employees of defendant, in the exercise of reasonable diligence, could have removed the obstruction in time to have cleared the track for trains passing over the road, and particularly before the train upon which plaintiff was the engineer could have reached that point, is beyond question. The credibility of the witnesses who gave this testimony, the weight to be given it, were for the jury.
[329]*329So too, with the evidence as to whether the employees and agents of defendant had exercised ordinary care to notify the station agent or warn approaching trains of the obstruction. The jury had the testimony as to what was done; they heard the positive testimony of plaintiff and his witnesses, that they received no notice whatever until within some three hundred feet of the obstruction and that the signals then given to them were of such a character that in railroad usage they understood them to be signals that the track was clear. Whether they were justified in so construing the attempt to signal them, was for the jury. While the testimony of the younger Cihak was that he had reached the train within a short time after it passed Eureka, and while there is testimony of one of the witnesses for plaintiff that he saw a boy up in that neighborhood, the testimony is equally positive on the part of plaintiff, the conductor, the fireman and the head brakeman, that they neither saw this boy at that place or at any place nor heard him hallooing to them or making any sign whatever. As to the testimony of Johnson and of the elder Cihak, of their advance down the track to warn the train, the time when they started to do this, the kind of signals they made, the means they employed to signal the train, these were all in evidence before the jury. It appears without question, from the testimony of these witnesses themselves, that when they had run but a short time and distance, the train was so close on to the obstruction that when they jumped out of the way of the approaching engine the train had not gone much over one hundred feet when plaintiff leaped from the cab, and that was but a short distance from the obstruction. Furthermore, the time when these two men and the boy had started up the track to give the warning, presented a conflict of testimony, the solution of which rested entirely with the jury. It was for the jury to determine whether proper precautions were [330]*330taken to warn approaching trains. It is in evidence that about f orty-five regular trains passed there daily, and many freight trains. Cihak, at least, must have known this for he lived a very short distance from the ■ crossing.
As to the rate of speed of the train being excessive, under the facts and situation, to sustain the contention of the learned counsel for appellant, we would be obliged to hold as a mattr of law that that rate was excessive. It is to be remembered that in the case at bar, this occurred in the country at a road crossing and no ordinance, as in case of street crossings in cities, regulates the speed nor does any statute do so. Aside from the statutory or municipal regulation, no rate of speed at which a railroad train may be run is negligence per se. [Powell v. Missouri Pacific Ry. Co., 76 Mo. 80; Young v. Hannibal & St. Joseph Railroad Co., 79 Mo. 336, 1. c. 340.] As is said in the latter case by Mr.
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REYNOLDS, P. J.
(after stating the facts). — In their argument before us the learned counsel for appellant state that the only points they urge on this appeal are that the lower court committed error in overruling the demurrer to the evidence, asked by defendant at the close of plaintiff’s ease and also in overruling that demurrer when it was again offered at the close of all the testimony.
It is argued that these demurrers should have been sustained because, first, there was no evidence that defendant was guilty of any -negligence in the [327]*327premises, and'secondly, plaintiff’s own evidence shows he was guilty of contributory negligence in approaching a dangerous crossing which could not be seen by the trainmen until they were close upon it, at full speed and without having his train under control and also in jumping through the window of the cab while the train was going at a high rate of speed. Counsel for appellant further state that the court submitted the case to the jury on the theory that defendant was negligent in two particulars, namely, first, in not warning approaching trains of the obstruction, and secondly, in failing to remove the obstruction from the crossing. It may be said here that the assignment of negligence in going upon the track and in the manner in which defendant’s employees approached the track with the traction engine and the separator is out of the case, there being no claim that there was any negligence connected with that. It seems hardly necessary to cite authority in support of the rule that, defendant, not standing on a demurrer to plaintiff’s evidence in chief and then producing evidence, has waived the first demurrer. [See Frye v. St. Louis, I. M. & S. R. Co., 200 Mo. 377, 1. c. 381, 98 S. W. 566.] We concern ourselves then with the demurrer at the close of all the evidence.
If we are to adopt the theory of the learned counsel for appellant, it would require us to hold as a matter of law, that after the employees of defendant found that the separator was blocked on the track and after they heard the approach of the train, they had used due diligence and taken proper and prompt steps to warn those in charge of the approaching train of the obstruction; that we should hold, as a matter of law, that defendant used due diligence in attempting to remove the obstruction from the crossing after the wheels of the separator had become blocked; that we should hold as a matter of law that plaintiff was guilty of contributory negligence in respect to those acts of [328]*328negligence with which he is charged. ~W e cannot agree that under the evidence in this case these are matters of law.
What is negligence in a given case is a matter of law, but the determination of the facts constituting negligence or due diligence are for the jury. The second instruction given at the instance of defendant itself practically concedes this. That instruction tells the jury, “that the only issues before you are whether or not the servants and agents of the defendant were negligent in failing to remove the separator from the railroad track before the collision occurred; and whether or not the said servants and agents exercised ordinary care to notify" the station agent at Eureka and warn approaching trains of the obstruction on the track; and whether or not the plaintiff was guilty of negligence directly contributing to Ms injuries, either in failing to see and heed the signals given him and the obstruction on the crossing in time to have averted the collision or in running his train at a high rate of speed in approaching said crossing, or in jumping from the cab of the engine while the train was running at a high rate of speed, as the above issues are defined in other instructions.” It may be said as to the definitions referred to as covered by other instructions, no complaint whatever is made of them and, as before said, the only error assigned here is in overruling the demurrer to the evidence. That the evidence is conflicting on the issue as to whether the employees of defendant, in the exercise of reasonable diligence, could have removed the obstruction in time to have cleared the track for trains passing over the road, and particularly before the train upon which plaintiff was the engineer could have reached that point, is beyond question. The credibility of the witnesses who gave this testimony, the weight to be given it, were for the jury.
[329]*329So too, with the evidence as to whether the employees and agents of defendant had exercised ordinary care to notify the station agent or warn approaching trains of the obstruction. The jury had the testimony as to what was done; they heard the positive testimony of plaintiff and his witnesses, that they received no notice whatever until within some three hundred feet of the obstruction and that the signals then given to them were of such a character that in railroad usage they understood them to be signals that the track was clear. Whether they were justified in so construing the attempt to signal them, was for the jury. While the testimony of the younger Cihak was that he had reached the train within a short time after it passed Eureka, and while there is testimony of one of the witnesses for plaintiff that he saw a boy up in that neighborhood, the testimony is equally positive on the part of plaintiff, the conductor, the fireman and the head brakeman, that they neither saw this boy at that place or at any place nor heard him hallooing to them or making any sign whatever. As to the testimony of Johnson and of the elder Cihak, of their advance down the track to warn the train, the time when they started to do this, the kind of signals they made, the means they employed to signal the train, these were all in evidence before the jury. It appears without question, from the testimony of these witnesses themselves, that when they had run but a short time and distance, the train was so close on to the obstruction that when they jumped out of the way of the approaching engine the train had not gone much over one hundred feet when plaintiff leaped from the cab, and that was but a short distance from the obstruction. Furthermore, the time when these two men and the boy had started up the track to give the warning, presented a conflict of testimony, the solution of which rested entirely with the jury. It was for the jury to determine whether proper precautions were [330]*330taken to warn approaching trains. It is in evidence that about f orty-five regular trains passed there daily, and many freight trains. Cihak, at least, must have known this for he lived a very short distance from the ■ crossing.
As to the rate of speed of the train being excessive, under the facts and situation, to sustain the contention of the learned counsel for appellant, we would be obliged to hold as a mattr of law that that rate was excessive. It is to be remembered that in the case at bar, this occurred in the country at a road crossing and no ordinance, as in case of street crossings in cities, regulates the speed nor does any statute do so. Aside from the statutory or municipal regulation, no rate of speed at which a railroad train may be run is negligence per se. [Powell v. Missouri Pacific Ry. Co., 76 Mo. 80; Young v. Hannibal & St. Joseph Railroad Co., 79 Mo. 336, 1. c. 340.] As is said in the latter case by Mr. Commissioner Philips, “What would be a negligent rate of speed under certain circumstances might be wholly blameless under others.” Prom the testimony in this case and' especially aided by the plat in evidence and which is before us, while it appears that there is a sharp curve of the railroad track as the train goes east from Eureka and immediately before reaching this crossing, it appears that the Blakey road, as it is called, along which the traction engine and separator were being drawn, runs for 600 feet parallel with and to the south of the tracks of the railroad and after it crosses the tracks runs for a distance of about 1400 feet up an incline to where it crosses the Missouri Pacific tracks. It is evident that persons passing from the Cihak farm, where this machinery had been stored, to cross the road would have a fair view of the track as far up as Eureka, and that they had this view after they crossed the track is shown by the testimony of witnesses in this case who saw the smoke of the approaching en[331]*331gine before it reached Eureka. So that so far as the public was concerned this was not a dangerous crossing as there was full opportunity for those traveling along the road to have warning of the approach of any train from Eureka. After the railroad tracks cross the public road they are straight for apparently over a mile and to the crossing of the Meramec river and beyond there to a station called Crescent, which appears to be about three miles east of Eureka. There was no reason therefore to call for a slackening of speed on the part of the engineer of the train, unless we are to hold as a matter of law that speed is to be slackened at all curves and crossings; he had sounded his whistle after leaving Eureka 600 yards east of the crossing, and long enough ahead to have cleared the track of pedestrians or of ordinary travel over it. Nor can it be contended that he had anything to look for but a clear track at this point, certainly had no occasion to anticipate a permanent obstruction of this kind on it.
Whether the speed was excessive was a question of fact. There are cases where, in the absence of a statute or ordinance upon the subject, considered in connection with other circumstances, the court may be justified in declaring as a matter of law that the company was guilty of negligence in running its train at an excessive and dangerous rate of speed under the circumstances of that particular case. Mr. Elliott in his work on Railroads, 3 Elliott, Railroads (2 Ed.), sec. 1160, says: “In the absence of any statute or ordinance upon the subject, no rate of speed is negligence per se. . . . Ordinarily, however, the question is one of fact for the jury.” See, also, Chicago & Northwestern Railway Co. v. Netolicky, 14 U. S. C. C. A. 615 (67 Fed. Rep. 665), a decision by the United States Circuit Court of Appeals for the Eighth Circuit, the opinion written by Judge Thayer, concurred in by Judges Caldwell and Sanborn. So we have found [332]*332it treated by all the cases in onr state which, have been referred to even by industrious counsel for appellant. We are unable to say, as claimed by 'those counsel here we must, that the rate of speed was, under the circumstances of this case, so excessive as to render its maintenance at that place negligence per se and to declare as a matter of law in this case that such was so clearly a matter of negligence on the part of this plaintiff, the engineer, that we should declare that he cannot recover. The burden of proving that this speed rate, pleaded by defendant as a contributing act of negligence, was excessive, was upon defendant. It is uncontradicted that the speed was the usual one for that train at that point; it was called for by the train schedule, apparently; the engineer was running under orders and with notice that the track was clear. He had sounded his whistle; he had no reason to apprehend the presence of such an obstruction.
The remaining ground for claiming that • a verdict should have been directed for defendant and its demurrer sustained, is the act of plaintiff in jumping out of the window of his cab- when he saw the imminence of colliding with the obstruction across the track. This is claimed as a contributing cause, the burden of sustaining which was also on defendant. To sustain the contention of counsel for appellant, we would have to declare as a matter of law that this act of plaintiff was also negligence per se. This we cannot do. Our Supreme Court in Kleiber v. The People’s Ry. Co., 107 Mo. 240, 17 S. W. 946, has settled this proposition in our state. It is there said (1. c. 247): “It is as well settled as any other principle of the law of negligence that, if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and [333]*333acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true, though no injury would have resulted had no attempt to escape been made.” Citing many cases and quoting from others in support of this rule, Judge Macearlane concludes, at page 249: “From these decisions the following rules, essential to liability may be deduced: First, the peril or alarm must have been caused by the negligence of the one against whom indemnity is sought; second, the apprehension of peril, from the standpoint of the injured person, must have been reasonable, and, third, the appearance of danger must have been imminent, leaving no time for deliberation. On the other hand the danger must be judged by the circumstances as they appear, and not bv the result.” See, also, Root v. Kansas City Southern R. Co., 195 Mo. 348, 1. c. 356, 92 S. W. 621, and Chicago & Northwestern Ry. Co. v. Netolicky, supra in which passing on a motion for rehearing, Judge Thayer has said (1. c. 624): “We are unwilling to declare, as a matter of law, that a person who is called .upon to act under such circumstances, and to act instantaneously, is guilty of negligence if he does not choose the safer course. In such a case the inference of contributory negligence, if it is a justifiable inference, should be drawn by the jury, rather than by tbe court.” In'brief our Supreme Court as well as the United States Circuit Court of Appeals declined to say as a matter of law that choosing what appeared to him to be a means of safety in his fright and confusion and that means turning out to be disastrous to him, the plaintiff can be held guilty of contributory negligence. So it has been held and the rule applied in Feddeck v. St. Louis Car Co., 125 Mo. App. 24 102 S. W. 675, by this court, and in Hull v. Thomson Transfer [334]*334Co., 135 Mo. App. 119, 115 S. W. 1054, by the Kansas City Court of Appeals, it being held in the latter case (1. c. 123) that the question as to the act of the plaintiff under the circumstances and as to whether he acted as an ordinarily prudent person might be expected to act under similar circumstances was a question for the jury. "We think these cases sufficient to warrant us in declining to hold as a matter of law that plaintiff contributed to his own hurt by jumping from his engine.
Summarizing our conclusions on the facts . and the law, we hold that there was evidence to support a verdict either way; ample evidence that would support a verdict for the plaintiff under proper instructions. The jury has found against the defendant; it was properly instructed; that finding has been affirmed by the learned trial judge. On careful consideration of all the testimony in the case and weighing the arguments and consulting the authorities of counsel for appellant, we can arrive at no conclusion but that the judgment of the circuit court should be and it is affirmed.
Nortoni and Caulfield, JJ., concur.