CAULFIELD, J.
(after stating the facts). — I. Defendant contends that, as a matter of law, under the record facts, plaintiff’s husband, Joseph Byars, was himself guilty of negligence,- hence the court erred in not sustaining a demurrer to the evidence. In this connection it conclusively appears that the driver, Carter, was not Byars ’ servant and Byars had no control over him or over the team. Byars was the mere guest of Carter. Whether Carter was negligent we do not at this time decide. If he was negligent, his negligence is not to be imputed to Byars as his guest or passenger. To hold that it was, “would be to abrogate a well-settled rule of the common law which gives a right of action for an injury resulting directly from the joint wrongful act of two wrong doers against either or both of such wrong doers,” and “to make an innocent person answerable for the wrong act of another over whom he has and exercises no control, and who is neither his servant nor his agent.” [Becke v. The Mo. Pac. Ry. Co., 102 Mo. 544, 549, 13 S. W. 1053; Stotler v. Railroad, 200 Mo. 107, 143, 98 S. W. 509.] The question, then, before us is whether Byars’ conduct, in the particular circumstances in which he was placed as the guest of Carter, constituted contributory negligence on his part. The burden of proving that Byars was guilty of such contributory negligence was on the defendant, and in sustaining that burden defendant is confronted with the presumption, which the law indulges, that Byars did exercise due care. [Stotler v. Railroad, 200 Mo. 107, 146, 98 S. W. 509.] In order, then, to convict the trial court of error it must affirmatively and conclusively appear from the evidence that Byars himself was guilty of negligence, i. e., failed to act as an ordinarily prudent person would have acted for his own [705] safety in the circumstances of the case. [Connor v. Railroad, 149 Mo. App. 675, 689, 129 S. W. 777.] Now, what did Byars do as the wagon came to the point where he could see the engine coming? Defendant’s witness, the fireman, testified that he looked and saw and appeared to call the driver’s attention to the coming train when all were in a position of apparent safety. This disposes of the looking and listening doctrine. Byars did all the law required of him in that respect. The argument has advanced, then, to the point where it had advanced in the Stotler case, supra, when our Supreme Court said in language peculiarly appropriate at this juncture: “The case, then, has progressed to the point where fault can be found with plaintiff, if at all, not in her not looking and listening, in her not seeing and hearing the advancing train, but in the act of driving on the track immediately before that train. The act in question was not hers, but if she actively participated in that act, or is responsible therefor, she ought not to recover. If she did not actively participate therein, and is not responsible therefor, then there is no independent cause intervening between defendant’s ngligence and the injury, and that injury should be referred to defendant’s negligence alone.” Of course there is no pretense in this case that Byars actively participated in or sanctioned or was in any wise responsible for the act of driving on the track immediately before the train. According to the fireman’s testimony, when Byars called the driver’s attention to the coming train, the driver looked and' then tried to hold the team, which by that time had gotten to going “a little bit faster.” When the team was getting close to the track and Byars realized there was danger of them getting upon it, then he ran to the driver’s assistance and tried to hold the team back off the track. He did this before the fireman realized they were coming up[706] on the track and called to the engineer to ‘ ‘ stop her. ’ ’ We are of the opinion that this evidence is sufficient to sustain the jury’s finding that Byars acted as a reasonably prudent man under the circumstances should have acted. There is no evidence in the case that he knew that the driver was inefficient or the team difficult to hold back, and he had a right to assume, until the contrary appeared, that the driver could and would avoid going upon the track. As soon as he realized there was danger of going upon the track, he made a quick effort to avoid it. It is true that what he did was not sufficient to avert the impending disaster. He might perhaps have made a quick jump from the wagon and thus escaped death at least; but his conduct in that respect is not to be measured with nicety without regard to the circumstances under which he acted. One is not chargeable with negligence because, when exposed to sudden danger, he does not adopt the safest and best course to avoid injury. [Dickson v. Omaha & St. Louis R. Co., 124 Mo. 140; 27 S. W. 476.] Whether the course adopted by him to free himself from the peril in which he was involved by the approaching train was such as a man of ordinary prudence might or would have adopted, was a question for the jury. [Donohue v. St. Louis, I. M. & S. R. Co., 91 Mo. 357, 3. S. W. 424, 2 S. W. 848.] We rule this assignment against the defendant.
II. Defendant complains that plaintiff’s instruction No. 1 was erroneous because it was contrary to the evidence and not supported by the evidence, citing Schmidt v. Transit Co., 140 Mo. App. l. c. 187, 120 S. W. 96. We are not advised and have not discovered wherein this instruction is contrary to the evidence or what evidence in support of it is lacking, but we infer from the local citation given that the point intended to be made is, that there is no evidence in the case [707] that the .failure to give the statutory signals was the proximate cause of Byars’ death. In the Schmidt case this court said: “There is no presumption of law that because the car was running in violation of the ordinance, the plaintiff’s injury resulted próxima tely therefrom. On the contrary, such is a matter of fact which must be established to a reasonable certainty by the evidence.” Such would also be the rule as to failure to give the statutory signals, were it not that the effect of the statute (Section 3140, R. S. 1909) has been to change the law in this respect, so as to make a prima facie case by proof of the failure to give the signals, accompanied by an injury at the crossing. There need be no proof that the failure to give the signals caused the injury. The law supplies that proof and casts the burden upon the defendant to show that the failure to ring the bell was not the cause of the injury. [McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.] This assignment of error is also ruled against the defendant.
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CAULFIELD, J.
(after stating the facts). — I. Defendant contends that, as a matter of law, under the record facts, plaintiff’s husband, Joseph Byars, was himself guilty of negligence,- hence the court erred in not sustaining a demurrer to the evidence. In this connection it conclusively appears that the driver, Carter, was not Byars ’ servant and Byars had no control over him or over the team. Byars was the mere guest of Carter. Whether Carter was negligent we do not at this time decide. If he was negligent, his negligence is not to be imputed to Byars as his guest or passenger. To hold that it was, “would be to abrogate a well-settled rule of the common law which gives a right of action for an injury resulting directly from the joint wrongful act of two wrong doers against either or both of such wrong doers,” and “to make an innocent person answerable for the wrong act of another over whom he has and exercises no control, and who is neither his servant nor his agent.” [Becke v. The Mo. Pac. Ry. Co., 102 Mo. 544, 549, 13 S. W. 1053; Stotler v. Railroad, 200 Mo. 107, 143, 98 S. W. 509.] The question, then, before us is whether Byars’ conduct, in the particular circumstances in which he was placed as the guest of Carter, constituted contributory negligence on his part. The burden of proving that Byars was guilty of such contributory negligence was on the defendant, and in sustaining that burden defendant is confronted with the presumption, which the law indulges, that Byars did exercise due care. [Stotler v. Railroad, 200 Mo. 107, 146, 98 S. W. 509.] In order, then, to convict the trial court of error it must affirmatively and conclusively appear from the evidence that Byars himself was guilty of negligence, i. e., failed to act as an ordinarily prudent person would have acted for his own [705] safety in the circumstances of the case. [Connor v. Railroad, 149 Mo. App. 675, 689, 129 S. W. 777.] Now, what did Byars do as the wagon came to the point where he could see the engine coming? Defendant’s witness, the fireman, testified that he looked and saw and appeared to call the driver’s attention to the coming train when all were in a position of apparent safety. This disposes of the looking and listening doctrine. Byars did all the law required of him in that respect. The argument has advanced, then, to the point where it had advanced in the Stotler case, supra, when our Supreme Court said in language peculiarly appropriate at this juncture: “The case, then, has progressed to the point where fault can be found with plaintiff, if at all, not in her not looking and listening, in her not seeing and hearing the advancing train, but in the act of driving on the track immediately before that train. The act in question was not hers, but if she actively participated in that act, or is responsible therefor, she ought not to recover. If she did not actively participate therein, and is not responsible therefor, then there is no independent cause intervening between defendant’s ngligence and the injury, and that injury should be referred to defendant’s negligence alone.” Of course there is no pretense in this case that Byars actively participated in or sanctioned or was in any wise responsible for the act of driving on the track immediately before the train. According to the fireman’s testimony, when Byars called the driver’s attention to the coming train, the driver looked and' then tried to hold the team, which by that time had gotten to going “a little bit faster.” When the team was getting close to the track and Byars realized there was danger of them getting upon it, then he ran to the driver’s assistance and tried to hold the team back off the track. He did this before the fireman realized they were coming up[706] on the track and called to the engineer to ‘ ‘ stop her. ’ ’ We are of the opinion that this evidence is sufficient to sustain the jury’s finding that Byars acted as a reasonably prudent man under the circumstances should have acted. There is no evidence in the case that he knew that the driver was inefficient or the team difficult to hold back, and he had a right to assume, until the contrary appeared, that the driver could and would avoid going upon the track. As soon as he realized there was danger of going upon the track, he made a quick effort to avoid it. It is true that what he did was not sufficient to avert the impending disaster. He might perhaps have made a quick jump from the wagon and thus escaped death at least; but his conduct in that respect is not to be measured with nicety without regard to the circumstances under which he acted. One is not chargeable with negligence because, when exposed to sudden danger, he does not adopt the safest and best course to avoid injury. [Dickson v. Omaha & St. Louis R. Co., 124 Mo. 140; 27 S. W. 476.] Whether the course adopted by him to free himself from the peril in which he was involved by the approaching train was such as a man of ordinary prudence might or would have adopted, was a question for the jury. [Donohue v. St. Louis, I. M. & S. R. Co., 91 Mo. 357, 3. S. W. 424, 2 S. W. 848.] We rule this assignment against the defendant.
II. Defendant complains that plaintiff’s instruction No. 1 was erroneous because it was contrary to the evidence and not supported by the evidence, citing Schmidt v. Transit Co., 140 Mo. App. l. c. 187, 120 S. W. 96. We are not advised and have not discovered wherein this instruction is contrary to the evidence or what evidence in support of it is lacking, but we infer from the local citation given that the point intended to be made is, that there is no evidence in the case [707] that the .failure to give the statutory signals was the proximate cause of Byars’ death. In the Schmidt case this court said: “There is no presumption of law that because the car was running in violation of the ordinance, the plaintiff’s injury resulted próxima tely therefrom. On the contrary, such is a matter of fact which must be established to a reasonable certainty by the evidence.” Such would also be the rule as to failure to give the statutory signals, were it not that the effect of the statute (Section 3140, R. S. 1909) has been to change the law in this respect, so as to make a prima facie case by proof of the failure to give the signals, accompanied by an injury at the crossing. There need be no proof that the failure to give the signals caused the injury. The law supplies that proof and casts the burden upon the defendant to show that the failure to ring the bell was not the cause of the injury. [McNulty v. Railroad, 203 Mo. 475, 101 S. W. 1082.] This assignment of error is also ruled against the defendant.
III. Defendant next assigns as error the giving of plaintiff’s instruction No. 2 on the ground that it was contrary to the evidence and was not supported by the evidence; and on the further ground that it was in direct conflict with defendant’s instruction Nd. 2. Defendant makes no effort to point out wherein the plaintiff’s instruction No. 2 is contrary to, or not supported by, the evidence, and it is clear to us that the instruction was not properly subject to the general criticism made of it. Every hypothesis submitted to the jury was supported by substantial evidence. Indeed, the evidence shows conclusively that the driver owned and had exclusive control of the team and Byars was his mere guest or passenger, and the evidence of the fireman was sufficient to support the hypothesis that Byars acted as a reasonably prudent person under the circumstances. On the other hand. [708] defendant’s instruction No. 2 was clearly erroneous in declaring Byars guilty of negligence as a matter of law from the bald and sole fact that the team went on the track after he saw or by the exercise of ordinary care could have seen the coming train. The conduct of a mere guest or passenger, without control over the driver’s movements, is not to be measured by that strict rule. We discussed this sufficiently in connection with defendant’s demurrer to the evidence. We hold, then, that plaintiff’s instruction No. 2 was correct and properly given, while defendant’s instruction No. 2 was incorrect and improperly given. It follows that defendant is estopped to claim reversible error resulting from the inconsistency of these two instructions, if there be any, having,himself invited the error by asking and obtaining a wrong instruction. [Thompson v. Joseph W. Moon Buggy Co., 155 Mo. App. 597, 134 S. W. 1088; Christian v. Ins. Co., 143 Mo. 460, 45 S. W. 268.]
IV. The defendant offered four instructions, each of which declared or assumed as a matter of law that it was the duty of Byars when approaching the crossing to stop, look and listen for an approaching train. The court struck out the word “stop” before giving these instructions and the defendant assigns such action as error. The court was clearly right in such action. Whether a traveler, even the driver, or one in control of the movements of the vehicle, should stop in addition to looking and listening for the cars, is a question of fact for the jury, and not of law for the court. [Mayes v. St. L., K. & N. R. R. Co., 71 Mo. App. 140; Frank v. St. Louis Transit Co., 99 Mo. App. 323, 73 S. W. 239.] One of these instructions would have declared that “the testimony in this case shows that the defendant’s employees in charge of said train made use of all the precautions of which they could make use under the circumstances to prevent the said [709] injury. ’ ’ Defendant assigns as error the action of the court in striking out said language before giving said instruction. There is no merit in this assignment. There is ample evidence that the employees could have taken the precaution to have rung the bell or blown the whistle as prescribed by statute. and that they failed to do so.
Finding no error .-of which the defendant can justly complain, the judgment is affirmed.
Reynolds, P. J., and Nortoni, J., concur.