Clark v. St. Joseph Terminal Railroad

148 S.W. 472, 242 Mo. 570, 1912 Mo. LEXIS 42

• Court: Supreme Court of Missouri
• Decided: May 20, 1912
• Status: Published

Opinions

GRAVES, J.

Plaintiff sued the St. Joseph Terminal Railroad Company and the St. Joseph Union Depot Company in the circuit court of Buchanan county, to recover compensation for injuries alleged to have been sustained by him because of the negligence of said companies. At the conclusion of the evidence introduced at the trial, plaintiff took a nonsuit as to the Union Depot Company. Verdict was returned in the sum of $11,400 against the Terminal Railroad Company and judgment rendered in that amount, from which judgment said Terminal Railroad Company appeals to this court.

Plaintiff was, on the 28th day of September, 1901, in the employ of the St. Joseph Light, Railway, Heat and Power Company as a motorman, and as such was in charg'e of one of said company’s trains of street cars, then being operated over-Sixth street in the city of St. Joseph. There were two street car tracks running north and south along Sixth street. Cars running north ran over the east street car track, and cars running south ran over the west track. Just north of Monterey street, which crosses Sixth street, four railway tracks cross Sixth street in close proximity to each other. The first railway track north of Monterey street belonged to the St. Joseph Terminal Railroad Company; the second track belonged to the Chicago, Rock Island and Pacific Railroad Company; the third track belonged to the Chicago, Burlington and Quincy Railroad Company, and the fourth or north track belonged to the St. Joseph Union Depot Company. A plat or blue print map of this portion of Sixth street was introduced in evidence by plaintiff, and by it the distance between the Terminal Railroad Company track and the Rock Island track is shown to be a little more than twelve feet; the distance between the Rock Island track and the Burlington track is a little more than forty feet, and the distance between the Burlington track and the Union Depot Company track is a little more than 105 feet, such distances being measured along the east rail of the east street car track. The Union Depot Company track crosses the street diagonally in a direction from northeast to southwest. While the distance from the Burlington track to the Union Depot Company track measured along the east rail of the east street car track is a little over 105 feet, the distance along the west rail of the east street car track is only a little over ninety-nine feet. Plaintiff claims these distances to be a fraction less than those shown by the plat, a matter to be fully noted in the opinion.

From the street ear tracks the Union Depot Company track curves into a northerly direction to its terminus at the Union Depot building, a few hundred feet north and situated on the east side of Sixth street. There was situated on the east side of Sixth street and between the Union Depot Company track and the Burlington track a watchman’s or flagman’s house. This house was thirty or thirty-five feet southeast of the point where the east rail of the east street car and the south rail of the Union Depot Company track crossed, as appears from the plat in evidence. Plaintiff’s “Exhibit C” and defendants’ “Exhibit B,” two photographs evidently taken from a different viewpoint, tend to illustrate this situation, and for that reason are here inserted.

A visual examination of the plat heretofore mentioned serves ‘more clearly to fix the location and surroundings heretofore described, and for that reason said plat is also set out.

On the date above mentioned, plaintiff was acting as the motorman of one of the cars of the St. Joseph Railway, Light, Heat and Power Company, operating over the Sixth street tracks. He was standing on the front platform of a car which was the nsnal and customary place for the motormen to stand in the performance of their duties. Attached behind this car was a second car, called a trailer. These cars were being propelled north across Sixth street and on the east track. When they came within a few feet of the Terminal Railroad Company track, the first one to cross when going north, plaintiff stopped the cars. At that time a switch engine and a number of freight cars were passing along Sixth street on said Terminal Railroad Company track. As soon as the engine and cars had-passed, the plaintiff started his cars and crossed the first three tracks. Plaintiff testified that after crossing the third, or Burlington track, he looked northeast to see if a Burlington train was approaching.

A few minutes before this, a Santa Fe passenger train, consisting of two passenger cars, a baggage car and an engine, had arrived at the Union Depot. The passengers had disembarked and the baggage had been unloaded, and the train crew, with the exception of the engineer and fireman, had left the train. This train came into the Union Depot at about this time every day, such depot being the end of its run from North Lexington, Missouri. After the passengers had disembarked and the baggage had been unloaded, the train was backed out of the said Union Depot over the Union Depot Company track heretofore mentioned over and across Sixth street and across the street car tracks mentioned and over other tracks and streets to the Terminal yards. The evidence shows that it was the customary practice for an employee of the Terminal Railroad Company, called a hostler or pilot, to take up a position upon the rear platform of the rear coach and while said train was backing out of the Union Station and over snch tracks to the terminal yards to assist in the management of said train by signalling to the engineer and fireman and by applying the air brake and sounding an air whistle on said rear platform.

On the date above, this train was being backed along this track as usual. The evidence is conflicting as to whether the hostler or pilot was on the rear coach. At the point where the street car tracks and the Union Depot Company tracks crossed, the rear coa,eh and the street car which plaintiff controlled as motorman collided with great force. The street car was thrown off the tracks and slewed around to a position nearly parallel with the railway coach.

By the shock and force of the collision,- plaintiff was thrown onto the platform of the street car and wedged between the street car, and passenger coach in such manner that he was seriously and greatly injured.

The petition is exceedingly verbose, but after pleading some ordinances of the city (alleged to have been violated by defendant) and the general duties of the defendant to plaintiff, we find a paragraph of the petition which fairly reiterates the divers charges of negligence. This paragraph reads:

“Plaintiff further states that said collision so had as aforesaid, between said train of cars being so backed out of said Union Station as aforesaid, and the street ca.r upon which plaintiff was a motorneer at said time and place aforesaid, in consequence of which the plaintiff received the injuries complained of as aforesaid, was caused and occasioned by the carelessness and negligence of said defendants in carelessly and negligently running said train of cars at a greater rate of speed than five miles per hour, and failing to ring a bell upon the engine of said train of cars moving as aforesaid, and carelessly and negligently failing to have a man upon the rear end of the car to pilot the same ont from said Union Depot across said Sixth street; and failing and neglecting to have a suitable air brake or emergency • brake, or any other safe appliance on said train of cars by which the same could be stopped within a reasonable time; and by carelessly and negligently failing to stop said backing train before reaching said Sixth street as aforesaid; and by the carelessness and negligence of the defendants, their agents and employees in charge of said train, in failing to give any warning or notice whatever of the approach of said backing train towards and over said Sixth street by ringing a bell or otherwise, and by the carelessness and negligence of defendants in failing to have and keep a capable watchman, or other person at said crossing to give warning or notice to the employees of said car company, and especially to plaintiff, of the approach of said backing. train of cars as aforesaid,' towards and over said crossing, and by the carelessness and negligence of defendants, its agents and employees, to have discovered the danger in which plaintiff was placed and failing and neglecting to apply the air brakes or other brakes on said car to protect plaintiff from the danger in which defendants by their agents and employees had placed him by their carelessness and negligence after they did Team of such danger, or could have learned of such danger, by due care and caution. ’ ’

Defendant answered by way of general denial- and a- plea of contributory negligence. The plea of contributory negligence set forth an ordinance of the city and a state statute alleged to have been unobserved by plaintiff at the time of his injury. Other details as to both pleadings and evidence can best.be noted in connection with the points made.

I. We are confronted with a, preliminary question in this case, the details of which we have purposely omitted from our statement, for the reason that they can best be stated here. The cause was tried and plaintiff had judgment for $11,400 on February 13th, 1908. On. March 10, 1908, the following paper wa.s filed in the cause in the Buchanan Circuit Court:

State of Missouri, 1 County of Buchanan. / ' s-

R. A. Brown, being first duly sworn upon his oath, says that he is the attorney and agent of the above named defendant, St. Joseph Terminal Railroad Company, and as such is duly authorized to make this affidavit; that the appeal prayed for by the said defendant, St. Joseph Terminal Railroad Company, is not made for vexation dr delay, but because this affiant considers said defendant, St. Joseph Terminal Railroad Compaiiy, and said defendant considers .itself, aggrieved by the judgment and decision of the court herein.

On the same day the following record entry was made by said court:

Subscribed and sworn to before me this 9th day of March, 1908. R. A. Bbown.

(Buchanan Circuit Court)

(Seal)

(Missouri)

No. 16763.

Harry B. Clark, Plaintiff, v. St. Joseph Terminal Railroad Company et al., Defendants. Affidavit for Appeal.

Filed March 10, 1908. Ambkose Patton,

Circuit" Clerk.

By J. C. Lund,

Deputy Clerk.

Harry B. Clark No. 16763. v. St. Joseph Terminal Railroad Company et al.

Now here defendant, St. Joseph Terminal Railroad Company, has leave to file bill of exceptions herein during the next regular term of this court.

Comes now the said defendant, and by its attorney files affidavit for appeal, and now here in open court said defendant deposits with the clerk the sum of ten dollars as docket fee for appeal. New here the amount of the appeal bond is fixed at twenty five thousand dollars, said bond to be filed and approved by the clerk of this court within ten days after final adjournment thereof for this term.

And now here appeal is allowed said defendant to the Supreme Court of the State.

In 1911 it was discovered that the name of the officer before whom the affidavit was made was missing, and the defendant fied in the circuit court its application for certain nunc pro tunc entries. At the time the paper was filed, Ambrose Patton was circuit clerk, and C. J. Lund, his deputy. Judge Henry M. Ramey was the presiding judge. In the meantime death had taken both the judge and the deputy clerk, and the clerk himself had gone out of office.

Upon a hearing of the matter, Judge Amick, successor to Judge Ramey, by order duly made, directed that the words “Ambrose Patton, Circuit Clerk, by C. J. Lund, Deputy Clerk,” be attached to said affidavit by Ambrose Patton, and further ordered and directed that the record entries of March 10th, supra, be amended by adding the following words therein: “Said affidavit having been sworn to before C. J. Lund, deputy clerk of this court,” so that clause of the record, when so amended, read:

“Comes now the said defendant, by its attorneys and files affidavit for appeal, said affidavit having been sworn to before G. J. Lund, deputy clerk of this court.”

In the hearing of this application the court records and files were introduced, and in addition, R. A. Brown, attorney for defendant, was permitted to testify that he in fact swore to the affidavit before C. J. Lund, deputy clerk. This evidence was objected to, and upon the termination of the inquiry resulting in the judgment aforesaid thus amending the records, the plaintiff appealed.

Plaintiff challenges the right of the circuit court to thus amend its record, and has filed in this court motion to dismiss the appeal, on the ground that there is no affidavit of appeal.

This motion we think should be overruled. Practically the same question was up in Cooley v. Railroad, 149 Mo. 487. The only difference between the affidavit for the appeal in that ease and the one at bar being that in the Cooley case the seal of the clerk was not affixed, and in this case it was affixed. On the facts the case at bar is the stronger of the two. The Cooley case, wherein the defective affidavit was filed, went to the Kansas City Court of Appeals, and was there reversed and remanded. When it got back to the circuit court a motion was filed to dismiss the case upon the ground that the Kansas City Court of Appeals acquired no jurisdiction owing to the absence of-an affidavit for appeal, and its judgment remanding the cause was void for want of jurisdiction. With this question lodged in the case, it went to the Kansas City Court of Appeals a second - time, and after an opinion was written, the cause was certified to this court. We adopted in toto the opinion of Smith, J., and made it our own. [149 Mo. l. c. 491.] Discussing the defective affidavit we there said:

“After the cause had been remanded to the latter court, the defendant moved to dismiss the same for the reason that no affidavit for an appeal had been filed by the plaintiff and therefore the appeal granted was unauthorized by law, and did not confer jurisdiction upon this court to render said judgment of reversal. To the affidavit upon which the appeal was granted, there was no jurat appended. The circuit court, after hearing evidence as to whether or not the plaintiff’s attorney, by whom the affidavit was signed, had made oath thereto before the cleric, overruled the defendant’s said motion to dismiss and permitted the cleric to attach the proper jurat to the affidavit. The order granting the appeal was regular on its face, and our attention was at no time called to the defect in the affidavit, either by motion or otherwise.

“Section 2114, Revised Statutes 1889, expressly provides that the omissions, imperfections, defects and variances mentioned in the preceding section (2113) .and others of like nature, not being against the right and justice of the matter of the suit, and not altering the issues between the parties on the trial, shall be supplied and amended by the court when the judgment shall be given, or by the court into which such judgment shall be removed by writ of error, or appeal. No reason is therefore seen why the omitted. jurat could not have been supplied by leave of either this or the circuit court, even after the judgment of reversal was given by the court. [Bergesch v. Keevil, 19 Mo. 127; Crum v. Elliston, 33 Mo. App. 591.]”

We have since followed the Cooley case in State ex rel. v. Broaddus, 210 Mo. l. c. 14, whereat we said: “In Cooley v. Railroad, 149 Mo. 487, it was held that under section 2114, Revised Statutes 1889 (See. 673, R. S. 1899), a jurat omitted from the affidavit upon which the appeal is granted may be supplied by leave of either the appellate or the trial court, upon a showing that the affidavit had been properly signed and sworn to.”

The proceedings had in this cause seem to be in conformity with these views. The motion to dismiss is therefore overruled.

■ II. The first vital question urged goes to the petition. Defendant contends that under the petition there can be no recovery under the so-called humanitarian doctrine, and as that question permeates the whole case, this contention had best be settled even before we discuss the demurrer to the evidence. A discussion of .the demurrer to the evidence involves the question.

In addition to wha,t we have heretofore quoted from the petition in our statement we find the following:

“ ... and carelessly and negligently failed to apply or use an air brake or an emergency brake, or any brake whatever on said backing train as aforesaid or to use any means or appliances of any kind or character to stop said hacking train after discovering there was danger of a collision at said Sixth street with said street car on which plaintiff was motorneer as aforesaid, or after the agents or employees of the defendants in charge of said moving train might or conld, in the proper exercise of due care and vigilance, have discovered the danger of a collision between said backing train and said street car in time to have employed an air-brake, emergency brake, or other appliances to stop said train and avoid a collision between said train and said street car, bnt on the contrary defendants then and there carelessly and negligently and by reason of the various acts of negligence herein charged against them, ran said train upon and over said Sixth street, and collided with and with great force and violence struck the car upon which plaintiff was so employed as motorneer, and caused the injuries hereinafter complained of.”

Defendant’s contention is based upon two phrases found in plaintiff’s exceedingly lengthy and verbose petition. At one place this phrase is found: “that while plaintiff was in the discharge of his duties and in the exercise of due, reasonable and ordinary care the defendants by their agents, ’ ’ etc.; and in another place this phrase: “and without any fault, carelessness or negligence on the part of the plaintiff and then and there said train of cars so managed by defendants as aforesaid struck plaintiff,” etc.

Defendant ,says that the use of. these" averments precludes the idea of negligence upon the part of plaintiff, and that the humanitarian rule presumes the previous negligence of the plaintiff. It is usually true that the humanitarian rule is only invoked in cases where the plaintiff has negligently placed himself in a position of peril. We mean by this that such are the cases in which we have been called upon to define and limit the application of the humanitarian or last clear chance rule.

We will not digress in this case to disenss either the origin of the doctrine or its merits or demerits. The question we have here is a pure question of pleading. In this case, as in all others of like character, the plaintiff is suing to recover for injuries, alleged' to have heen received through the negligent acts of defendant. Those negligent acts áre severable into two classes, (1) acts which are charged to have been the cause of the injury, although plaintiff was himself not negligent, and (2) negligently failing to stop the train after plaintiff was in a position of peril, whether his perilous position was occasioned by his negligence or not.. Of course, the position of peril must be known to the defendant, or it must be shown that the defendant could have known of it in time to have averted the injury, if defendant had been in the exercise of reasonable care and prudence. But this last is beside the question before us. The petition in this case should be perhaps declared to be in one count, although that is not certain. Such we take to be its reasonable construction and what we have to say will be upon that theory. Upon that theory does the use of these phrases quoted supra preclude the application of the so-called humanitarian rule ? We think not. The basis of the action is negligence. Negligence may grow out of divers acts. Some of these divers acts may constitute what the books denominate common law negligence, and some of them may make up what we call statutory negligence. After all it is negligence and negligent acts with which we are dealing. A number of negligent acts may go towards producing the same injury. Some may be statutory and some common law acts of negligence, but in the end we have only negligence. We are not convinced that this court has ever announced that different acts of negligence could not be charged in the single count of a petition. This has been continuously done in cases where there are acts of common law and acts of statutory or ordinary negligence. Several acts of negligence of the same general nature, all of which may be true, and either of which or all which may have caused the accident or injury may be placed in one count of a petition. [Haley v. Railroad, 197 Mo. l. c. 23; Wacher v. Transit Co., 108 Mo. App. 645; Holdon v. Railroad, 108 Mo. App. 665; White v. Railroad, 202 Mo. l. c. 560.]

If so then we can see no reason why the act of negligence which brings the case within the so-called humanitarian rule, may not be alleged with other acts of negligence in the one count of the petition. The act of negligence authorizing a recovery under the humanitarian rule is one done after the plaintiff has placed himself in a position of peril, but it is none the less negligence and an act of negligence within the law as such is announced by the humanitarian rule.

Defendant in the brief says: “Plaintiff’s petition did not state a case under the humanitarian rule. This doctrine is bottomed upon, and presupposes contributory negligence upon the part of the plaintiff. In order to take advantage of that rule, a plaintiff must state a case consistent with the existence of contributory negligence upon his part.”

Reliance is placed upon the case of Nivert v. Railroad, 232 Mo. 626. Upon the question of pleading the opinion of Woodson, P. J., in the Nivert case, is not an opinion of the court. There were only three judges sitting and upon this question two of them dissented from the views of the presiding judge. Nor is the Krehmeyer case, 220 Mo. 639, an authority. In that case, at page 672, it is indicated that four judges concur, thus leaving an opinion upon the question, but this is error. On page 673, begins the separate opinion of the present writer, in which a special concurrence in the result is shown, and for reasons other than the question of pleading discussed in the principal opinion. Thus it will be seen that there is no opinion made in that case upon the question here presented, and discussed in those two cases.

In Haley v. Railroad, supra, we said: “Several acts of negligence of the same nature, and all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count.” In that case the negligence calling for the invocation of the humanitarian rule was pleaded, as .well as other acts of negligence.

But after all the cause of action is to recover for negligence. This negligence may be made up of many distinct acts of negligence, and the plaintiff can plead all of the negligent acts, and recover upon either one which may be established by the evidence.

In the Waeher case, supra, there were five distinct acts of negligence relied upon for recovery, thus:

“1. In negligently managing the car.

“2. In failing to keep watch for vehicles on the track in front of said car.

“3. In failing to sound the bell, or in any other manner warning the plaintiff of the car’s approach.

“4. In failing to stop the car after the danger of striking plaintiff’s wagon, became apparent, or by the exercise of ordinary care would have become apparent.

“5. By running the ear at a high and dangerous rate of speed.”

It will be noted that the fourth counts upon the humanitarian rule. In the course of the opinion the court said: “The plaintiff’s right of action was single and not collective of several distinct or separate causes of action and was properly pleaded in one count. ’ ’

In the recént case of White v. Railroad, supra, after reviewing our own eases, we said:

“Furthermore, it will be found that, barring inconsistent and self-destructive averments, there havp been presented to this court in the last half century hundreds of cases in which common law negligence and negligence made so by statute (or by some by-law of a city) have been pleaded in the same count and recovery has been allowed on proof of all or one or more of these specifications; and we cannot see why the different elements which blend together to produce the injury (so long as there is no discord between them) may not be so pleaded. The uniform practice has been to so plead them; no injury results therefrom to defendant that we can see; and there is no more confusion in blending them in one count than would come in setting out each specification of negligence in a separate count.

“It may be said, then, that whether the negligence complained of arises from the violation of a common law duty, or a statutory duty, or an ordinance duty, is of no significance (that is, the mere origin of the duty violated is of no significance) so long as the violated duties produce the one injury and the one damage constituting the subject-matter of the suit. There was no error in overruling the motion because it commingled ordinance and common law negligence.”

Such too is the reason of the situation. When you plead facts such as will invoke the humanitarian rule, you but plead an act of negligence. Acts of negligence not inconsistent with each other may be pleaded in a single count. We are not of opinion that the facts pleaded as to such acts as invoked the humanitarian rule in this case are inconsistent with the other acts of negligence. The petition, whilst not as specific and direct as it might be upon the humanitarian rule, is broad enough and definite enough to permit a recovery upon that theory. In discussing the demurrer to the evidence, we shall therefore discuss it upon the theory that the humanitarian doctrine is in the case under the pleadings.

III. ' Should the demurrer to the evidence have been sustained? We think not for reasons to be assigned. We must concede the negligence of the plaintiff, for such is the proof. The track upon which he was injured was the north one of the four tracks. A fair consideration of the evidence forces us to say that there was ample space for the plaintiff to have stopped his train of two street cars, in safety, between the third and fourth railroad tracks. The statute of this State compels street railways to stop their cars not less than ten or more than twenty feet from a railroad crossing. This statute cannot be repealed by the customary violation thereof. Plaintiff’s evidence shows that for a long time it had been the custom to stop the street cars upon the approach of the first track on the south and then to start up and run across all four (as if one track)• without stopping. This custom can not change the statute, nor can it excuse the plaintiff from the negligence per se arising from the violation of the statute. So that we repeat that we must proceed upon the theory that plaintiff himself was negligent.

There is evidence likewise showing the negligence of the defendant. The backing train was being run in excess of five miles per hour, the rate fixed by ordinance, as indicated by evidence for the plaintiff. According to the plaintiff’s side of the case the flagman failed of his duty; no bell was rung in violation, of ordinance; no man was upon the lookout upon the rear of the train, etc. In other words, ample acts of negligence upon the part of the defendant are made to appear. Shortly stated the facts are these. Plaintiff stopped his street cars (two in number in one train) upon reaching the south track and before crossing it; upon signal from his conductor, he started up with the intention of not stopping until he had crossed the four tracks. Plaintiff says he saw this backing train, when he, plaintiff, was thirty feet from the crossing; that he at once undertook to stop his train' of street cars, and did everything he could to stop them; that he was going at only three miles an hour. Plaintiff thus describes his acts after passing the Burlington track:

“Q. Just state to the court what you were doing after you got past the Burlington track? A. When I crossed over the Burlington track I was watching to the northeast up on the curve where trains back out from the depot and saw no train, and then looked up the street as I was going on, glancing in different directions, and a man standing at a switch target to the west of Sixth street looking to the southwest attracted my attention by reason that the Burlington passenger train from Kansas City was already then past due, and thinking that it was then coming and I would be in danger from that direction I bent over and took a look for it in a southwest direction.

“Q. Was that the direction from which the Burlington train came? A. Yes, sir, and as I turned around and straightened up, looking the other way again—

“Q. What do you mean by ‘looking the other way’? A. Straight north, up the street ahead of me, and turning my glance again past the shanty I saw this train.

“The Court: Where were you when you saw the train?

“The Witness: Somewhere within about thirty feet.

“Q. From what? A. From the cross-rail.

“Q. The crossing of this curved track? A. Yes, sir, and at the same time I hollered to jump, and made every effort on earth to stop my car.

“Q. Did you jump? A. No, sir; I stayed on my car, in order to save the lives of the passengers behind me.

£<Q. State what effort yon did make to stop the car when yon first discovered, on looking in that direction, this Santa Pe train was approaching yon? A. Throwed the current off, applied the brake and checked the speed of the ear, and also started to reverse it; before anything else could be done I was struck.

££Q. Do you remember what part of your car was struck by the Santa .Pe train? A. Struck my car right on the northeast corner.

“Q. What part of the Santa Fe train struck the northeast corner of your car? A. The back end of the step. ’ ’

Others testify that an attempt was made to stop the street cars about the time mentioned by plaintiff, but their statements do not fully accord with that of plaintiff as to the speed he was going. Plaintiff also says that he saw the backing train when it was 125 feet from the crossing. Witnesses place the rate of its speed at from eight to ten miles per hour. Other evidence would indicate that after passing the little lookout house (a small eight by ten structure) he could have practically seen to the Union Depot. Still other evidence tends to show that the only obstruction to his view of this train from a long distance south of the ££dog house” or lookout house, was two or three telephone poles and this small structure. So that when all the evidence is viewed, it is quite clear that plaintiff was not only guilty of negligence in not stopping his train according to the statutory edict, but that he was likewise guilty of actual negligence in not sooner seeing the backing train. Not only so, but we take it with a grain of doubt, when he says that he could not stop these streets cars running only from two to three miles per hour in a distance of the thirty feet which he had to go. Either he was going much faster, or he made no prompt attempt to stop, is the only reasonable conclusion. There is no hint that his appliances were not in order. To say that a street car running only three miles per hour conld not be stopped in mucb less than thirty feet, is asking this conrt to discard its common sense, as well as the common knowledge which we all possess. It would in all cases be better for plaintiffs to bare the real facts to the scrutiny of the court. This we feel that plaintiff has not done in this case. We conclude that the plaintiff was guilty of both statutory and actual negligence.

But does this conclusion bar his recovery? Under other facts in this case, we think not. It is further shown that the defendant always placed a man in charge of these backing trains. That this man’s position was on the rear of the train, or the front end of the backing cars. That the backing train ran under this man’s directions. That from his position he signaled the engineer to start and to stop. That on this rear car, or front car as it backed, was an arrangement by which the air could be applied and the train stopped. That it was the duty of the man in charge of the train not only to signal the engineer to stop, but in case of necessity to apply the air. A witness for the plaintiff, one Waller, who was fireman on the backing train, says that their train was going about eight miles per hour, and that by the application of the air it could have been stopped within a distance of four or five feet; that when the collision occurred, the impact released the air and the train in fact stopped within that distance. This witness also says that defendant’s agent, William Ferrington, was in charge of this backing train at the time; that he jumped from the train when thirty or more feet east of the east line of Sixth street; that had he applied the air, which could have been done as quickly as the snapping of the fingers, the train could have easily been stopped before passing the east curb line of the street; that Ferrington jumped from the car without either signalling the engineer or applying the air.

Under these facts should the case have gone to the jury on the humanitarian rule? We think so. We have here a place where the law imposes the duty of being on the lookout. We have here a place where what might have been seen by the exercise of ordinary care, is, in law, actually seen. Had Ferrington remained on the car the perilous position of plaintiff would have been obvious, if in fact it was not obvious when he suddenly left the car without doing a thing to prevent the accident. Some evidence would indicate that seeing an impending collision he left the .rear car. Unfortunately Ferrington was dead and his version is not before us. But under the evidence before us he left his car, when it was fifty to sixty feet from the street car crossing, and without applying the air or doing anything else to obviate a collision. This too, when the evidence tends to show that his train, by the application of the air, could have been stopped within four or five feet. Now grant it to be true that plaintiff was guilty of gross negligence, and by such had placed himself in a perilous position, this does not relieve the defendant, if by the exercise of ordinary care it could have seen his position of peril in time to have averted the injury. We say “could have seen” rather than “did see,” because this was a place where defendant had no right to expect a clear track, and was in duty bound to be on the lookout. Under these facts we conclude there was no error in overruling the demurrer to the evidence on the theory that the humanitarian rule applies in this case, and we think that it does.

IV. Plaintiff instructions are the objects of vigorous assaults.

Plaintiff’s instruction No. 3 thus reads:

“The court instructs the jury that if-they believe from the evidence in this case that the plaintiff used reasonable care and diligence in moving the street cars north on Sixth street on the. occasion of the collision, and that he exercised reasonable care and diligence in keeping a lookout in different directions, so as to avoid or endeavor to avoid any danger, and that after passing over the Burlington railroad track, that is, the track which the evidence tends to show was next south of the track upon which the collision occurred, when he was thirty or forty feet or more south of the track upon which the collision occurred, he made every reasonable effort to stop his said street cars before they reached the track upon which the collision occurred and could not do so, and that notwithstanding his efforts in that behalf the collision did occur, then the jury cannot find against the plaintiff on the ground of negligence or contributory negligence in not stopping his car.”

This instruction is error. Plaintiff says his two cars were about forty feet each in length. And the couplings between them were about three feet, or his train about eighty-three feet. Other evidence makes them less. He could have complied with the law and the ordinance which required him to stop before attempting to cross this last track. The law said for him to stop. It did not say for him to use ordinary care to stop. When the law commands a thing to be done, it means that the utmost care and diligence must be used to obey its mandates. Ordinary care and diligence was not the measure of the plaintiff’s duty, and this declaration of law is not only erroneous, but misleading. It left the jury to excuse the plaintiff upon a showing of ordinary care, when the statute imperatively commanded him to stop, which command' imposes the highest degree of care. This statute was passed to save the lives of passengers and must be construed in that light. Construed in that light it imposes more than ordinary care and diligence.

V. Plaintiff’s instruction numbered 5 permitted a recovery for the plaintiff upon alleged negligent acts, other than the failure to protect plaintiff whilst in a perilous position, provided the jury found that plaintiff himself was guilty of no negligence.. In other words, this instruction eliminates the humanitarian rule, and submits the questions of (1) negligence or no negligence upon the part of. defendant, and (2) contributory or no contributory negligence upon the part of the plaintiff. The instruction is perhaps well enough, generally speaking, in a case where applicable. It would be applicable in this case, but for the reason that the court should have said, as a matter of law, that this plaintiff was guilty of negligence. This plaintiff should have started up and run his car with a view of stopping it before attempting to cross the. railroad track, and this too in the absence of any apparent danger, because the law so says. Plaintiff says that he was not so running his car. Pie shys he had no intention of stopping his car before crossing that track, until he saw this train. His duty was to have had his car under such control as would enable him to stop it in not less than ten feet of the railroad track, at which time he could make the proper observations as to when it was safe to proceed across. But beyond this the physical facts in this record show that plaintiff, had he looked, could have seen the banking train in ample time to have protected his car from the collision. He did see it thirty feet from the crossing, and under the physical facts could have seen it much further. There were no obstructions except, this little “dog house” and one or two telephone poles for some distance south and east of this crossing. Neither of these would so obstruct a train of two coaches, a baggage car and a tender and engine, that it could not have been observed.

It is true that in this case plaintiff says he was on the lookout for trains, but this does not clear the situation. Macfarlane, J., in Kelsay v. Railroad, 129 Mo. l. c. 374, thus spoke for the court.

“But even conceding that she testified that slie looked east for a train as soon as she fiad passed tfie obstruction, it is clear tfiat tfie train was in plain view and witfiin two hundred or three hundred feet of tfie crossing. One of two facts is true: Either tfie plaintiff did not Ipok with tfiat care common prudence required of her, or she did not look at all, until too late to avoid tfie collision.

“It was said in a recent case: ‘It is simply and flatly impossible tfiat one can stop, look, and listen for an approaching train tfiat is in plain view and close at hand and be unable to see or hear it, if fie possess tfie senses of sight and hearing. It seems, therefore, necessary to advance one step in tfie application of tfie doctrine of legal presumption, and to lay it down as a rule tfiat one who is struck by a moving train which was plainly visible from tfie point fie occupied when it became his duty "to stop, look, and listen, must be conclusively presumed to have disregarded tfiat rule of 1 aw and of common prudence, and to have gone negligently into an obvious danger. A line of well considered cases leads fairly up to this conclusion.’ [Meyers v. Railway, 24 Atl. 747.]

“ ‘If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed, in case he is injured by collision, either tfiat fie did not look, or, if fie did look, tfiat fie did not heed what fie saw. Such, conduct is field negligence per se.’ [Beach, Cont. Neg. (2 Ed.), sec. 182.]

“ ‘It is in vain to say tfiat fie looked and listened, if, in despite of what his eyes and ears must have told him, fie walked directly in front of a moving locomotive.’ [Carroll v. Railroad, 12 Wkly. Notes Cas. 348; Marland v. Railroad, 16 Atl. 623.]

“ ‘A man may possibly think fie sees an object, which, has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist or was not seen. But an object and power of sight being conceded, the one may not negative the other. In this case the plaintiff had good eyes; the train was approaching him in the night, with the engine’s headlight burning brightly; if the plaintiff looked, he must have seen it, or he must have looked Very negligently and carelessly —in either ease, he was necessarily, in the eyes of the law, guilty of contributory negligence, precluding his right to recover.’ [Artz v. Railroad, 34 Iowa, 153.]

“ ‘It was broad daylight, and when within five feet of the north rail of the .track it is undisputed that the plaintiff could see two hundred and fifty feet east along the main track. No one disputes that if he had but looked he certainly would have seen the train. It is evident, therefore, that he did not look; or, if he did, he saw the train and carelessly attempted to cross in front of it, and in either case he was guilty of such negligence as to preclude a recovery. . . . If he had looked eastward, he would have seen the train before he stepped upon the track. . . . One look eastward, and one less step taken, he would not have been upon the track. Upon any theory of the case, it was the duty of the court to have directed the verdict in favor of the defendant.’ [Gardner v. Railroad, 56 N. W. 603.]

“It was said in a recent case in this court, by the present chief justice: ‘It will thus be seen that it was a physical impossibility for the deceased to have failed to see the approaching train, if he looked in that direc-. tion, 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 having lost his 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.’ [Hayden v. Railroad, 124 Mo. l. c. 573.]

“Plaintiff says her eyesight was g'oocl. A view of the track for a quarter of a mile was unobstructed from any point within twenty-five feet, of the track. When the obstruction was passed the train was within three hundred feet of the crossing in plain view. It is in vain for plaintiff to say that she looked, with any degree of care, and did not see it. In any event we can but say that plaintiff was negligent and that her negligence contributed to her own injury. After a careful examination of all the evidence, and allowing every reasonable inference in favor of plaintiff, this conclusion is irresistible.”

This case has ofttimes been followed by this court. Mrs. Kelsay testified that she did look for a train and could not see one, but this court said such testimony was in the very face of the physical facts, and we by onr judgment of plain reversal declared her guilty of negligence. So in the case at bar the trial court should have declared as a matter of law that the plaintiff was guilty of negligence, and an instruction that submitted the question of his negligence to the jury was error.

Under the facts of this case the plaintiff has but one chance fox recovery and that is the humanitarian rule. His instructions should have been so confined. They were not so confined. This instruction and one other are upon the other theory. They should not have been given and the giving of them constitute reversible error. They permitted recovery upon a theory not in the case under the facts and the law.

VI. Other instructions covering the humanitarian doctrine are criticized because they assume controverted facts. If they do, correction can be made in another trial. Instructions should never assume as true facts about which there is a controversy. We shall not further lengthen an opinion already too long by far. Prom what has been said, it follows that the judgment should be reversed, and the cause remanded, and it is so ordered.

All concur, except Woodson, J., who dissents in opinion filed.

PER CURIAM. — The foregoing opinion of Graves, P. J., in Division No. One, as modified by him after the case reached Court in Banc, is adopted as the opinion of this court.

All concur except Wood-son, J., who dissents in opinion filed, and Valliant, G. J., who is absent.