LAMM, J.
— Negligence. Defendant in apt time and due form appeals from a judgment in the Adair Circuit Court entered on a verdict in plaintiff’s favor for $10,000.
The pleadings. As we construe the petition it counts on the three specifications .of negligence following :
First, that plaintiff was walking on defendant’s track in Randolph county south of the city of Moberly at a point where said track (with the knowledge of defendant and its officers, servants and employees) was for a long time treated as a thorougfare by people not connected with the railroad service and by them was traveled as a public highway of said county. That such public user cast the duty upon defendant’s employees running its trains to keep a sharp lookout for persons on the track in front of them and exposed to danger. That on the occasion in hand defendant’s employees running a certain locomotive and train of cars failed to perform this duty, when by ordinary care in looking out they would have discovered plaintiff’s peril in time to have saved her. (Nota bene: This specification was not submitted to the jury.)
Second, complaint is made in the petition of a negligent-rate of speed of forty miles an hour in violation of defendant’s alleged duty to run its trains at the locus in quo at such speed as permitted the engineer to have his train “constantly under control.” (Nota bene-. This specification also was not submitted to the jury.)
Third, finally the petition counts on another theory, viz., that, plaintiff being on the track and unconscious of the train’s approach, defendant’s servants in immediate charge of its locomotive and train saw her danger in ample time to have warned her and to [150]*150have stopped the train before running her down and negligently failed to do either, whereby she was run down, struck and injured. (Note. This was the issue put to the jury upon which to predicate a recovery.)
The answer admits defendant was a railroad corporation owning and operating the line of railroad mentioned, but denies all other allegations. Following that denial is a plea of contributory negligence— in that, the place of the accident was in the country among farms, where defendant’s track was inclosed by' side fences and cattle-guards and was not at the crossing at any public road; that plaintiff, without the knowledge or consent of defendant or its employees managing its train, negligently got upon its track as a trespasser and, walking thereon, negligently failed to stop, look or listen for the train. That as soon as she was seen on the track by defendant’s said servants. she was duly warned by both whistle and bell, notwithstanding which warnings she failed to leave the track as she had plenty of time to do. That if she had stopped, looked or listened she would have seen and heard the train in ample time to leave the track and avoid her own injury; wherefore, defendant avers that plaintiff’s hurts were caused by her own negligent, unlawful and careless conduct. While, as said, defendant, in its answer pleaded affirmatively that due care was exercised in giving warnings by signals, there is no affirmative plea of any attempt to stop before hitting plaintiff. The issue in that behalf was raised by the general denial.
The cause was argued twice at our bar — once in Division and once in Banc. The force of the oral arguments by learned counsel on both sides was spent on the alleged error of the ruling nisi disallowing a de.murrer to the evidence at the close of the whole case. So, error in that ruling is pressed with vigor as the main assignment' in defendant’s brief.
[151]*151There are other assignments, viz.:
The court erred (1) in giving plaintiff’s first and second instructions; (2) in refusing eleven instructions prayed by defendant; (3) in permitting evidence tending to prove that plaintiff’s attention was attracted by the noise of an M. K. & T. train running nearby on a parallel track; (4) in modifying defendant’s 15th instruction; (5) in overruling defendant’s timely objection to the inflammatory argument of plaintiff’s counsel and in failing to rebuke counsel; and (6) finally that the verdict was against the instructions, was excessive and the product of sympathy, prejudice and passion.
Attending to those assignments, the main one seeks the facts, which are, to-wit: .
It is not amiss to cull, as near as may be, the undisputed from the disputed facts. Those undisputed follow, viz.: The scene of the accident was a mile or so south of the town of Moberly. Close by its south corporation line the Missouri, Kansas and Texas crosses the Wabash. Thence south for two or three miles the tracks of both run on a tangent and parallel 100 feet apart, the Wabash to the east, and the rights of way of both are inclosed by the same side fences and cut off by cattle-guards at public crossings.
Going north into Moberly there is an up grade of twenty-seven feet to the mile at the place of the accident, but the view on and of each track is quite unobstructed for a mile and a half or more either way from that place. At that point the Wabash track lay on a fill.
Some two or three hundred feet north of that place an east-and-west public road cuts both railroad tracks at a right angle, making what is called the Headinghouse crossing. About one-half mile south of the Headinghouse crossing there was another east- and west public road making what is called the Terrill crossing.
[152]*152There was a school house at a cross-road corner west of the Terrill crossing. Miss Butcher began teaching school in that country schoolhouse four days before she was injured, to-wit, on the 6th day of September, 1906'. She boarded with her brother, who lived on a farm northeast of the Headinghouse crossing on a north-and-south public road. She could go home from school by public roads in two ways. First, she could turn north at the corner at the schoolhouse on a public road and after aways turn east and go on over the Headinghouse crossing, and thence on east until she came to the north-and-south road on which her brother lived, and thence north on that road home; or she could go straight east from her schoolhouse on the Terrill road, cross both tracks at the Terrill crossing, thence on east till she came to the road on which her brother lived, thence turn north home, missing the Headinghouse crossing altogether.
She took neither of these ways home on the day she was hurt, nor had she taken either in the four days of her school term. She went (as she always had gone) east on the Terrill road until she came to or close to the Terrill crossing and then she turned north taking the M. K. & T. track for it. Presently, for personal reasons immaterial here, she changed over from the M. K. & T. to the Wabash and traveled north on the latter’s track for, say, a quarter of a mile, heading toward the Headinghouse crossing, where she planned to turn east until she came to the road on which her brother lived. It was about 4:3G of a clear, warm, bright summer afternoon. Taking with her a pupil, a little girl of ten years, she (herself aged nineteen) walked north in the middle of the track, bareheaded, carrying a lunch satchel and a box of wild haws, and being at the time in full possession of perfect natural senses. It seems the child walked a trifle ahead and to one side outside the rail on the ties, but within the danger line. The testimony is that after [153]*153starting north neither of them turned their heads to look for a train from the south, hut faced steadily to the north. However, when Miss Dutcher first got upon the Wabash track she looked to the south, hut no train was then in sight.
A few minutes before the accident, a train on one track was approaching one running on the other. On the M. K. & T. track there was a heavy freight train of 1000 or more feet in length, made up of twenty-five loaded cars, running down grade to the south at, say, 20 miles per hour and making a great .deal of noise. On the Wabash track there was a train of, say, 510 feet in length, made up of twelve loaded freight cars, running extra, approaching her from the south at a speed of from twenty-five to thirty miles per hour. The eight forward cars of this train and the engine were well equipped with air — the last four, including the caboose, were non-air cars.
When a mile or a mile and a half away (and constantly thereafter until he struck her) the engineer of the Wabash train saw the school mistress and little child going north on the track ahead of him, with their backs to him, and kept them under his eye. He also saw the M. K. & T. train coming to meet his. A man of experience, such as the Wabash, engineer was, could well conclude, as appears from the testimony, that at the rate the two trains were running the Wabash train would catch up with the school mistress at the very time the M. K. & T. train would pass her only 100 feet to her left. This would become more and more obvious as the trains covered the distance between them. That was precisely what happened. At two or three hundred feet south of the Headinghouse crossing, when the caboose of the M. K. & T. train was passing her or had got by her a hundred feet or so, the locomotive of the Wabash train struck.ber and tossed her many feet up and to one side off the track. [154]*154The child was not injured — the record being dark on the reason why.
It does not appear which way the wind, if any, blew and train sounds carried. Although bareheaded and in possession of all her natural senses, as said, Miss Dutcher did not hear the train that struck her nor did she know what struck her, and the evidence of the several eye witnesses is to the effect that as that train approached her from behind she walked straight on in the middle of the track, giving not the least sign she was aware of its approach, but to the contrary showing by her carriage and conduct that she was. entirely oblivious to its presence.
She was taken up unconscious,, remained unconscious for days, was injured on her head, an arm and leg were broken and possibly both arms, she was disfigured, one of her feet and the toes of that foot are drawn out of place, making her clubfooted and lame, one arm is crooked, there is a catch in the elbow of it, and there are other serious injuries — in short she is a cripple for life.
The M. K. & T. train was, as said, over 1000 feet long. As the men on the engine of that train approached her they saw her and apprehended her ignorance of danger and imminent peril and did their best to attract her attention to the Wabash train bearing-down upon her from behind by shouting and motioning. At the same time at the rear of the M. K. & T. train the men on the caboose also saw her peril and that she was unaware of it and also tried to warn her by shouting and gesticulating until they passed her. She saw this train and the motions of these men but, misapprehending their meaning, she thought they were trying to flirt with her and went her way in the middle of the track with her face, as always before, set to the north.
There was a whistling post eighty rods south of the Heading-house crossing. All sides agree that the [155]*155Wabash engine gave the usual crossing signal at that post. I ana of opinion that the fact, or if not the fact, at least the time and extent of the alarm signals, if any, belong in the list of disputed or uncertain facts to be stated later on.
We shall assume it proved beyond question that at the instant the school mistress was struck the Wabash engine had slowed down some — the extent thereof and the time and character of attempts to stop belong also in the category of disputed or uncertain facts to be noticed later on. After she was struck the Wabash train stopped, but before stopping it ran so far that its caboose stood about two carlengths (s'ay sixty-eight feet) north of where her body lay in the ditch. That is, it ran its own length (about five hundred and ten feet) plus sixty-eight feet. She was struck about 300 feet south of the Headinghouse crossing. The day was warm, as said, and the windows of the Wabash caboose and of its cupola were open. A brakeman, in order to make a quick switch at Moberly, had gone forward over the Wabash engine to the cowcatcher. He shouted to the school mistress as the engine caiiie on, and, seeing she was unconscious of the warning and that the engine was bound to strike her, he left-his post and came back over the engine before that event. . -
All the testimony tends to show that plaintiff was a trespasser on the Wabash track and that the sporadic occasional use of the track by footmen did not establish any public right by custom, acquiesced in, to such user at the time and place.
It maybe taken as established, also, that when the air brakes were once applied the jar of the air going on would be felt immediately in the non-air cars at the tail of the train. Moreover that, speed and track both considered, it was impossible to stop after the air was actually applied before hitting plaintiff, leaving the [156]*156question open for the nonce whether the application of the air was negligently delayed.
We now come to a set of facts which are uncertain or disputed, or from which different- inferences are drawn by counsel. As the summary we are making relates to defendant’s demurrer to the evidence, we shall deal with the disputed and uncertain facts in a , way as favorable to plaintiff as the record will allow —laying to one side, as within the province of the jury, both self-contradictions of, and disagreements between, witnesses; and giving our impressions of the tendency of the proof based on a critical study of the record, rather than swell the statement by profusion of detail.
There is some evidence to the effect that a rain had lately fallen and the public roads were heavy, and much that there was a dry spell and those roads were dusty; but, as this testimony connects itself merely with the use of the track by pedestrians, we lay it out of view on the same shelf with the user itself.
By far the greater weight of the testimony tends to* show that alarm signals were given by the Wabash engineer before the school mistress was struck. Some of it indicates they commenced at once after the crossing signal at the whistling post, say, 800 or more feet away from plaintiff. Some of it is to the effect that these signals commenced subsequently when the Wabash engine was 600 feet south of plaintiff. The engineer so testified. His account is that, noticing that the school mistress and the little girl did not look around when he gave the crossing signal, he drove ahead until within about 600 feet of where plaintiff was struck, when he began giving danger signals and continued them until she was struck. She was, as already said, always under his eye and he saw she gave no indications that she heard the signals or the train but just walked on in a leisurely sort of gait. But there was other testimony from some of defendant’s [157]*157witnesses who were watching the train, the school mistress and little girl, which is fairly susceptible to the construction that the alarm signals were first given when the engine was about one hundred and eighty or two hundred feet from the school mistress. There was an eye witness (Collins) on the M. K. & T. track 175 feet north of the Headinghouse crossing who left the track to let that train pass. There is some uncertainty whether he left to the east or to the west. If to the west, then the M. K. & T. train passed between him and the scene of the accident and shut off his view for the time. If to the east, then he was in plain view all the time. However, when the M. K. & T. passed him he could see what happened. He testified that the sharp alarm blasts were given after the M. 3L & T train passed him (but by which train he did not know) and he must have stood about four hundred feet from the point where she was struck.
There was negative evidence of some appreciable value. For instance, as pointed out, the school mistress was bareheaded and had good ears and she heard no alarm signals at all from the Wabash train. A silent fact of some value is that the child seems to have heard no alarm signals either. So, the Wabash conductor who was 510 feet from the nose of the engine of his train and was in a caboose with open windows, says he heard no alarm whistling until a while after he felt the jar and jam of his train from the air going on. A brakesman, in the cupola and similarly situated, gave evidence to the same effect. There was some testimony that the alarm signals continued after she was struck and one witness who was watching (Collins) says he saw no steam escape from the Wabash whistle.
Another witness testified the alarm signals were given after the M. K. & T. train passed south over the Headinghouse crossing. On that hypothesis they were given much less than 600 feet from her. So much for [158]*158the fact of alarm signals and the time they were given.
What of attempts, if any, to stop the train and when were they made ? The engineer says that, simultaneously with giving the alarm signals when 600 feet away from the plaintiff, he turned on the full force of his air and that his efforts to stop resulted in lowering his speed to about sixteen or eighteen miles per hour. Other testimony cuts the speed down to from ten to fifteen miles per hour at the moment of impact. Some of the testimony tended to show that the emergency air was turned on before and some of it after the alarm signals were first given, and some of it, not •agreeing to the distance mentioned by the engineer, tended to show (as he testified) that the air went on at the same time the alarm signals were given. There; was also testimony tending to show that the train ran after the emergency was applied eleven or twelve hundred feet and that the stop was a good one (this from the engineer and others), but there was other testimony tending to show that the train only ran from 600 to 800 feet after the emergency air went on. Assuming the train was running at the time it struck her at twelve to sixteen miles per hour, there was testimony tending to show that at twelve miles per hour, it could stop in 300 feet and at sixteen miles in 400' feet. In point of fact it ran after the blow about 600 feet. The witness Collins testified there was no slacking of speed at all until after Miss Dutcher was struck.
If necessity arises other facts will be stated in connection with the disposition of the assignments of error seriatim.
I. When this case was aigued in Bivision, the three sitting brethren were at first of opinion the demurrer to the evidence was improvidently ruled. But a restudy of the record, aided by arguments in Banc and new briefs, warrants a holding that the demurrer was well ruled. This because:
[159]*159(a) Defendant’s counsel industriously (and ex industria) have marshaled a great array of authority which we take as intended to explode the humanity rule as broadly expounded and adhered to in this jurisdiction. Thus, based on the theory that plaintiff was a trespasser and walked for a quarter of a mile oh defendant’s track without' looking behind her for a train, it is contended she was guilty of such palpable contributory negligence as defeats recovery as a matter of law, regardless of defendant’s own negligence. But we will not be drawn into an extended exposition of the philosophy of the humanity rule nor into a fresh defence of it.
In Reyburn v. Railroad, 187 Mo. l. c. 574, we said: “If what this court has said in former cases has failed to reconcile appellant to the justness of this doctrine probably nothing we could now say would be more persuasive.” That language was addressed to an attack made upon the humanity rule as laid down in the same case in these words (pp. 573-4): “It has long been the doctrine of this court that though a man voluntarily adopts the dangerous track of a railroad for his footpath and walks in it apparently heedless of the danger entailed, yet if the servants in charge of the locomotive see him and realize his danger, . . . it then becomes their duty to exercise ordinary care to do what they can with the means then at hand to avoid injuring him, and if they fail in that duty the railroad company is liable, notwithstanding the negligence of the injured man.”
In the Murphy case (228 Mo. 56) an elaborate and animated assault — one of many before — was delivered in Banc on the rule. In response we said, inter alia (p. 80'): “In the light of our later decisions, holding a single and no uncertain voice in that behalf, to defend the rule by marshaling anew the reasons underlying it, is but to admit it needs defense, and we leave it with some observations, viz.: (1) It is [160]*160too firmly rooted in the jurisprudence of this State to be overturned by anything short of an act of the law-making power.”
In Banc in the Eppstein case, 197 Mo. 1. c. 733, certain propositions pertaining to the humanity doctrine were formulated. Two of them are: “(a) Where one (at least one sui juris) is in a place of safety and therefrom negligently moves to a place of danger, so immediately before that danger that it may not be averted by the use of ordinary care by those controlling the dangerous instrumentality, and is killed, his death is not actionable, (b) Where one, unconscious of his peril, has negligently placed himself in a position of danger so far away from that danger that his death may be averted by the use of ordinary care by those who see him and who control the dangerous instrumentality, his death is actionable.”
In peril oft may be, yet so stands today the rule of law administered by appellate courts of Missouri in negligence cases coming within the range of the rule. Stare decisis. Quieta non movere. Accordingly the demurrer to the evidence cannot stand on the unsoundness of the humanitarian doctrine.
(b) A locomotive engine is equipped with whistle, bell and ability to stop its train. When one is negligently upon a railroad track unconscious of his immediate peril and that peril is timely discovered by those in charge of the engine they may not punish him for his negligence by knocking him off and thereby killing him, o,r breaking his bones or mauling and smashing his body. Out of tenderness to life and limb they must do what every man must do for every other man. in times of peace, viz., use due care to preserve life and limb. Due care is care according to circumstance. Due care calls for the use of the means at hand to prevent one’s injury to the person timely seen exposed to danger. The means at hand in this instance were bell, whistle and ability to stop. In some cases, the mpnoto[161]*161nous stroke of the bell might be due care. In others, easily put, the alarm whistle timely used might be dne care. And (the gauge of duty arising precisely with the obvious danger and the circumstances attending the individual case, under the axiom “the greater the hazard the greater the care”- — per Yalliant, J., in Woods v. Railroad, 188 Mo. 229) in some extreme cases nothing short of stopping would be due care. Because plaintiff was a trespasser those of defendant’s servants in charge of its locomotive were under no duty to look out for her in the country away from congested populations and between public crossings, absent a known and permitted public user, as here. But in this case they saw her a great ways off and saw her peril. Barring the duty to look for trespassers, the duty to use due care not to. kill or maim them if they are seen in time, is precisely the duty owed to those not trespassers.
In Lynch v. Railroad, 208 Mo. l. c. 34, it was ruled: “But even if he (deceased) had been guilty of contributory negligence, running as he was for a half mile ox two-thirds of a mile in plain view of the engineer and fireman on this engine and having indicated in no way to them his knowledge of their approach, it was their plain and obvious duty to exercise reasonable care for his safety and not run over him. Prom the time they saw him and observed, as alleged in the defendant’s answer, that he was not looking back and was ignorant of their approach, it was their duty to warn him and to slow down the train and stop if necessary in order to save Ms life.”
The Chamberlain case was in Banc (133 Mo. 587). In discussing the Sinclair case (133 Mo. 233) and the Reardon case (114 Mo. 405) we considered an instruction in the Chamberlain case, which, among other things, told the jury that, if Chamberlain (quoting) “while walking upon defendant’s track, became in [162]*162imminent peril of being struck by defendant’s train, arid defendant’s employees in charge of said train became aware of his peril of being struck in time to have enabled them, by the exercise of ordinary care, to have stopped said train, and to have averted the injury to said deceased, . . . and that they failed to exercise such care and stop said train, and that by reason of such failure to exercise such ordinary care, the said train was not stopped and said Chamberlain was struck and killed, then the jury must find for the plaintiff, though the jury may find that the deceased, Godfrey Chamberlain, was guilty of negligence in walking on defendant’s track.” In speaking to that instruction and approving it we said (p. 605): “But the instruction would not be proper in all cases, as the signal if given in time would be all that was required to apprise a trespasser, until it is seen he apparently does not hear it. The engineer is not required to stop his train if the trespasser is far enough away to warn him, and a timely- warning is sufficient until it is seen that for some ,cause it is not heeded; then it is his duty to avoid hilling, even a trespasser, if by .the exercise of ordinary care it can be done.”
The sound general doctrine is thus summarized and formulated in an excellent treatise (2 Shear, and Red. on Neg., sections 483-4): “The rule stated in section 99, that the plaintiff may recover, notwithstanding his contributory negligence, if the defendant, after becoming chargeable with notice of the plaintiff’s danger failed to use ordinary care to avoid injuring him, has been enforced in'many railroad cases. It is universally agreed that this rule applies to all cases in which the defendant or his agent is actually aware 'of the plaintiff’s danger. Thus, a locomotive engineer or motorman, after becoming aware of the presence of any person on, or dangerously near the track, however imprudently or wrongfully, is bound to use as much care to avoid injury to him as he ought [163]*163to use in favor of one lawfully and properly upon the track, that is to say, ordinary care with respect to anticipating injury, before it becomes imminent, and the utmost care and diligence of which he is personally capable, after he knows that it is imminent. He must' promptly use all the usual signals to warn the trespasser of danger, and he mnst also check the speed of his train, and even bring it to full stop, if necessary, unless the circumstances are such as to justify him, acting prudently, in believing that the traveler sees or hears the train and will step off the track in ample time to avoid all danger, without any diminution of the speed of the train. ... In general, an engineer has the right to assume that a person walking upon the track is free to act, and is in-possession of all ordinary faculties, and will therefore act with ordinary prudence; but when the conduct of the traveler is such as to excite a doubt of this, the engineer is bound to use greater caution, and to check or even stop the train, as may be necessary. So, where he sees a little child upon the track, he has no right to assume that the child will use the same discretion for its own protection as an older person would; and he must bring the speed of the train under control as quickly as possible, so as to be able to stop it altogether, if the child does not appreciate its danger. . . ; The rule stated in the last secton, however, does not cover the whole ground. The defendant is responsible, not only for what he actually knows, but for that which he is bound to know. It is clear that the frequent statements that contributory negligence is an absolute bar to recovery, except where the defendant’s conduct has been ‘reckless,’ ‘willful’ or ‘wanton,’ or even grossly negligent, are not sound. No courts have in actual practice adhered to this imaginary rule; it has been explicitly overruled, and, indeed, it has been explained away or disavowed by courts which have previously stated it. Nothing more [164]*164is really meant by tbe courts using these phrases than a want of ordinary care, after becoming actually aware of the plaintiff’s peril.”
Assuming that due care may embrace the duty to give alarm signals in some cases, and the further duty, when those alarm signals fail (or apparently will fail) of their purpose, to stop the train, it remains to inquire: "When does either duty arise? Attend to what we have ruled on that score: “It may be safely said as a general rule, that the duty of care arises in all cases as soon as the perilous situation of the trespasser is discovered” — per Maceaklane, E., speaking for the whole court, in the Sinclair case supra. Still further speaking to the point, he said (p. 242): “Prom these cases, and many others that might be cited, it seems to be well settled that it'here no conditions intervene to confuse, or to prevent hearing a signal, and knowing its object, it will be sufficient if given in time for the trespasser to leave the track safely.” Speaking to the duty to stop the train we in that case further ruled that “this duty of the engineer arose as soon as he knew, or by proper care ought to have known, that deceased did not regard the warning signal. ’ ’
And in a late case in Banc, Degonia v. Railroad, 224 Mo. l. c. 595, there is guarded general language by our Brother G-raves apposite here, viz.: “Plaintiff’s case therefore must proceed upon the theory that defendant’s servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts.”
Justice is the constant and perpetual desire to give to every one his due, says Coke. It is not strange, then, that in a court of justice the just rule should be (as it [165]*165is in eases of this character) that when conditions intervene to confuse or prevent hearing an alarm signal or knowing its object, or where the conduct and actions of a party walking on a track with his back to a coming locomotive and a train of cars, should cause an" engineer of ordinary prudence to conclude that such party did not or could not hear alarm signals and was continuing his walk on the track, the right of the engineer to act upon the presumption that he would leave the track before being hit ceases. Take an example by way of illustration. There is a working presumption indulged that a party approaching a street car track will stop and not step upon it in front of a going car, but that presumption ceases when by the actions and conduct of the traveler it would be apparent, to a prndent motorman that he does intend to go upon the track (Ellis v. Railway, 234 Mo. l. c. 680-1 and cases cited). We can see no difference in principle between the two propositions. Both of them run on the theory that the party in charge of the car or locomotive should act on reasonable appearances and exercise due care in giving signals or in stopping.
Care to be due requires that alarm signals be given when they would be effective. And due care required that the attempt to stop should be made, as a last resort, when it would be effective; for if defendant owed any duty to stop at all that duty must begin when it amounts to something worth while. It must not be pretermitted until it amounts to nothing whatever. Any other view is hollow mummery — mere “words, words” that “lose the name of action.” Again, speaking of due diligence or care, it is axiomatic that he who has at his disposal the means of ■ knowing, is held to know; that he who shuts his eyes when to open them and look is to see, is held to see; that where there is a duty to use diligence, those facts which diligence will discover are presumed to be known under the law of notice; and that what one knows and [166]*166what he ought to know is regarded in law as equivalent. These trueisms are more often invoked in negligence cases against a plaintiff, but where the boot is on the other foot and defendant is charged with a "duty to use due care, as here, they fill a very useful office in determining the scope and discerning the elements of defendant’s duty.
We come now to apply more closely the general principles announced to the facts of the case at bar.
The engineer of the Wabash train gave his alarm signals, under some of the evidence, at about the time the M. K. & T. engine was opposite or nearly opposite the school mistress and child, to their left 100' feet. He continued them while that engine and long’, heavy train thundered past her. We think he is charged with the duty to see and know that intervening conditions had arisen likely to confuse and prevent her hearing those signals. At least that was' a question for the jury. He was charged with the duty to know and realize further that her actions unmistakably indicated she had not heard the crossing signals behind her. Whatever a man who knew of an approaching train might do in remaining dangerously long on the track, this engineer had no right to assume that the young school mistress and little girl, both presumably armed with the quick ear of youth, timid and shrinking from danger, were trifling with death by remaining on the track after they heard the crossing signals behind them. It is not natural for a woman and child to act that way. Natural instincts are allowed to have their weight and constitute evidence to men of sense. [Stotler v. Railroad, 200 Mo. l. c. 146.] Moreover, the situation, before a finger was lifted, had been allowed to drift and become so crying that the engineer concluded the emergency air should go on simultaneously with his giving the alarm signals. Is that the usual-course1? According to his theory, with everything to be seen lying right under [167]*167his eye, he drove ahead for' 600 or 700 feet after giving the crossing before giving the alarm signals. In other words he waited until the deafening noise from the near approach and passage of the M. K. & T. train would naturally, according to the physics of the matter, make it a matter of doubt whether the alarm signals would reach her and be effective. At least there was a question for the jury on that point and they were entitled to take that view of it. Moreover, there was testimony strongly tending to show that the engineer was mistaken about the distance. There is testimony that it was less than 600 feet, and some of it indicated he was as close to her as 180 or 200 feet. Such testimony raised an issue for the jury on the question of diligence and care in the time of giving the signals. Again, while the broad current of the testimony ran the other way, yet there was testimony of some value, negative in character, from which the jury might infer no alarm signals were given at all. There were silent facts, of which it may be said, though silent, they cry out (dum tacent, clamant), squinting the same way. We lay little stress on this feature of the case. We think if that had been the sole issue and the jury had found fox plaintiff the duty of the trial court would have been to set the verdict aside as against the very great weight of the credible testimony. But when a case at law comes by appeal to this court, we have nothing to do with the weight of the testimony. The appellate function is to say whether there is any substantial testimony. A mere glimmer or spark, a mere scintilla will not do, but if there is substantial testimony, however small as compared to the great body of the proof, we have no right to meddle with the weight of it, or ignore it because negative in character. We deem it not space misused to reproduce some excerpts from a case in the House of Lords (Railroad Co. v. Slattery, L. R. 3 App. Cas., pp. 1155, 1164-5, 1167, 1181, 1182-3).
[168]*168The Lord Chancellor said: “There is thus opposed to the evidence of two persons who say they did not hear, which may mean they did not observe, the whistle, and of one who says he did not hear it, but will not swear it did not take place, a body of witnesses, ten in number, including every person whose evidence could be supposed to be material, all of whom seemed to me to be entirely unimpeaehed and unimpeachable, who state in the most positive way that the whistling did take place.
“My Lords, I have already said that your Lordships have not now before you the question of whether the verdict was against evidence, or against the weight of evidence. But I feel bound to say that if that question were now open, I should, without hesitation, be of opinion that a verdict more directly against evidence I have seldom seen. It is stated that the learned judge before whom the case was tried was not dissatisfied with the verdict. I can only express my surprise that this should have been the case. As it is, it appears to me that the jury, actuated perhaps by feelings of compassion for a plaintiff who is no doubt much to be pitied, and willing to gratify those feelings at the expense of the appellants, have found the 'first issue, that of negligence on the part of the appellants, for the respondent, when it ought to have been found for the appellants. This, however, as I have already said, is not a reason for entering the verdict for the defendant. It is only a ground for a new trial. ... I certainly cannot look on the result of this litigation as satisfactory. The appellants will, I fear, have to pay a sum for which I cannot think they ought to have been made liable, and the respondent and her children will recover money to which I do not think that their legal right is established. But I cannot seek to prevent this by proposing to your Lordships, on the only part of the case which is brought for your deter-[169]*169ruination, to do what it appears to me would seriously encroach upon the legitimate province of a jury.”
And. Lord 0 ’Hagan, in the same case, said: ‘ ‘ My Lords, the principle on which, I think, this case ought to be decided appears, to me to be well expressed in the trite maxim, ‘Ad quaestionem juris respondent judices; Ad quaestionem facti respondent juratores.’ That maxim is old but cannot be obsolete whilst trial by jury subsists among us. . .' . As to the first question, whether the defendants were guilty of negligence, I cannot see how, possibly, it could have been taken from the jury. I shall not occupy the time of the house by any repetition of the narrative which has been lucidly given to it by my noble and learned friend on the woolsack. I shall only remind your Lordships that the learned Lord Chief Baron Palles rightly confined the attention of the jury to the consideration of the alleged want of whistling, as the one instance of negligence with which they had to do; and that with reference to it there was a large body of testimony and clearly conflicting testimony. Ten witnesses for the defendants swore that the whistling occurred at the proper time and in the usual way; three witnesses for the plaintiff swore that, being in a position in which, if it so occurred, the sound should have reached their ears, they-did not hear it. It is impossible not to be struck by the apparent weight of the defendants’ proof. But, as was observed in the Irish Court of Common Pleas, the jury saw the witnesses, and the judge did not condemn the verdict. And, whether it was right or wrong, the jurors along were competent, legally and constitutionally, to decide between the ten who testified on the one side and the three who testified on the other. It was urged, and the authority of an eminent judge was vouched to sustain the suggestion, that proof of the want of hearing was no material proof at all. But this seems to me untenable. Assuming that a man stands jn a certain [170]*170position, and has possession of his faculties, the fact that he does not hear what would ordinarily reach the ears of a person so placed, and with such opportunities, seems to me manifestly legal evidence, which may vary in its value and persuasiveness — which may in some instances he of small account, and in others be the strongest and the only evidence possible to be offered; but at all events cannot be withheld from the jury. And if this be so, there was here a conflict of testimony on which the jurymen, and they alone, were competent to pronownce.”-
The doctrine thus announced finds support in cases cited from our own reports in the briefs of counsel for respondent.
Again, taking the plainly confused situation, a situation so open and unusual as to be properly designated extraordinary — a situation in which a prudent engineer could see that there was a probability of alarm signals being drowned in the great volume of noise made by the heavy M. K. & T. freight train thundering past and near her — did the engineer use due diligence in applying his emergency brake? Did he not wait until he must have seen and known that the use of the brake was bound to be an idle formula? Mark, he could not possibly stop, after he began to stop, in time to save her at the rate he was going. He knew that or was bound to know it, which is the same thing. If the emergency was turned on precisely when the alarm signals began then there is some testimony tending to show that the air went on not 600’ feet away, as the engineer says, but a great deal closer than that. Their spontaneous and instinctive judgment, born of facts that lay before the eyes of the railroad employees on the M. K. & T. train, showed them during the time their train was 'approaching and running for twelve or fifteen hundred feet, as we figure it, that this woman and child were in deadly peril and were unconscious [171]*171of it. What they saw the Wabash engineer must also be held to see.
We are not dealing with a case where a person attempts to cross a track so closely before a locomotive that the engineer has no time to save life, nor with a case where the peril of a trespasser is not seen in time to save him, nor with a case where there is nothing to prevent the alarm signals being effective. We are cited to many cases of that sort, but they are not in point under the record in the instant ease.
Our conclusion is there was a case for the jury, hence the demurrer was well ruled.
II. While the main proposition for reversal (on which the whole force of the oral argument and marked labdr in collecting authority in briefs were spent) is the demurrer to the evidence, yet, as said at the outset, there are subsidiary assignments of error, viz.-: Defendant’s counsel lodge sundry objections against two instructions. One is that without any evidence to support them the court submitted issues whether signals or warnings were given, whether any efforts were made to prevent injuring plaintiff, and authorized a recovery without a finding that the engineer realized plaintiff did not hear the signals. Another is that it was erroneously assumed that plaintiff would have heard a whistle if one had been sounded, and erroneously assumed that the engineer discovered plaintiff’s peril in time to save her by the exercise of ordinary care. Another is that the same instruction' authorized a verdict if she did not hear the signals although the engineer may have had every reason to believe she did hear them, and in that particular there was a conflict with four of defendant’s instructions — that the instruction did not require the jury to find from the evidence that given signals were not heard, or that the engineer had good reason to believe they were not heard and after he discovered her [172]*172peril could by ordinary care save her. Another is the alleged assumption that the engineer could have-stopped the train after discovering plaintiff’s peril, and that it required more than the exercise of ordinary care. Another to both instructions is that they submitted to the jury the question whether plaintiff was a trespasser and was guilty of contributory negligence when that fact should have been declared as a matter of law by the court.
Acquiescing in the controlling prominence given to it by counsel, we considered the main proposition so fully that we feel justified in not disposing of those objections seriatim on full discussion, as we would have done if a suitable length to this opinion permitted. Counsel must rest content with the general ruling, to-wit, that we have not been able to find re-versible error in instructions.
We make these general observations and let it go at that, to-wit:
The ruling on the demurrer disposes of some of them.
Some of them are refined and technical to a degree reflecting no little credit on the acumen of learned counsel, but in no way, that we can see, affecting the merits or tending to mislead the hard-headed men in the box.
In some of them, suggested doubts and uncertainties are cleared away under the doctrine of aider by one or the other of the twelve instructions given for defendant.
Some of them are answered by a reference to the testimony of the witness Collins who was watching the train and testified, in effect, that it did not slacken its speed until after plaintiff was struck (that testimony may have been untrue, but its falsity is not for our determination. Plaintiff was entitled to reckon with it as one hypothesis).
[173]*173Some of them are answered by a reference to the negative testimony which, as heretofore pointed ont, tended to show no alarm signals were given np to the time Miss Dutcher was struck. (However, liability was not alone predicated on that fact, but the matter was woven into an instruction and coupled with other facts put to the jury by the conjunction “and.”)
Taking the whole body of the instructions (defendant’s with plaintiff’s) and reading them together, as we must, the ease was fairly put to the jury.
The point is disallowed to defendant.
III. The court refused twelve of defendant’s twenty-four instructions. Error is assigned on that score — the demurrer was one and is already decided.
One of those remaining told the jury that no warning signals were necessary until after the engineer discovered the teacher did not hear the rumbling of his train. It was well refused. When a twist of the wrist will sound a warning signal, why should an engineer dally and twiddle by speculating on the effect the rumbling of his own train had on a woman who was within the sound zone of a much nearer and much greater train? There is no testimony this engineer relied on rumbling. ‘
Another was refused which practically declared, upon facts admitted, that plaintiff was precluded of recovery beause she walked leisurely down the track without turning her head, and this although the jury believe “that no signal was given nor effort made to stop the train.” That instruction was not the law of a case falling within the humanity rule. The demurrer disposed of it.
Another was refused declaring, in effect, that an alarm signal at 600 feet was due care and that the engineer was not required to stop the train when he came in stopping distance of plaintiff. That might be good law in a proper case, but not under the cir[174]*174cumstances we are dealing* with. The disposition made of the demurrer disposes of it precisely as the trial court did.
Another was refused calling the jury’s attention to the noise of the M. K. & T. train and declaring as a matter of law that because of that noise it was plaintiff’s imperative duty to look behind to see if a train was approaching, and if she failed in that she could not recover. In effect, that was mandatory instruction for defendant, therefore is covered by the demurrer and must be similarly ruled.
Another was refused declaring "as a matter of law that if the alarm signals and attempts to stop began GOO feet from plaintiff and continued until she was struck she could not recover. That instruction invaded the province of the jury in determining what was due care under the particular circumstances of this case. Assuming our ruling on the demurrer is sound, the instruction was not the law of this case.
Another was refused declaring as a matter of law that plaintiff was guilty of such contributory negligence as precluded recovery. That instruction was' in the very teeth of the humanity rule as expounded in the first paragraph of this opinion. ■
Another was refused telling the jury that defendant owed no duty to plaintiff except to not willfully and wantonly run upon her without warning. The willfulness and wantonness doctrine is exploded. The touchstone of duty in the law of negligence is due care, not a shade less or more. Due care under the circumstances of this case does not exclude the duty to stop, as the instruction does.
Another was refused taking from the jury the right, to consider the noise made by the M. K. & T. train. That instruction eliminated the most pregnant fact in this case with one stroke of the pen. Defendant would hardly admit that it employed engineers' who did not know that M. K. & T. trains made noises [175]*175the same as Wabash trains, or who are ignorant of the immutable law of physics that the proximity of a g’reater noise has a tendency to drown out more distant noise. Any boy who ev.er worked around a threshing machine when the dinner horn blew knows that. The evidence relating to this noise was admitted over objection. We shall recur to the matter- when that ruling is considered. Some of defendant’s suggestions anent the instruction may be better disposed of then.
Another refused instruction was predicated of the theory that if a whistle was sounded and if it could not be heard because of the noise of the M. K. & T, train then in that event plaintiff should be cast. That was not the law of this case either.
Another declared it to be the law that if the whistle was blown from three to six hundred feet from plaintiff and afterwards until she was struck and the engineer did all in his power to save her after discovering she did not get off the track to avoid her own injury, then the verdict must be for the defendant. That instruction under the circumstances of the case invaded the province of the jury by limiting the distance in which the engineer was obliged to begin an effort to warn and save plaintiff to within three to six hundred feet. It was well refused.
Another told the jury there was no evidence that plaintiff’s position was one of peril from which she could not easily extricate herself (quoting) “until the train got so close to had no time to step off her that she the track.” We are not quite sure we understand the whole of this instruction. The part we do understand was wrong, the part we don’t understand we express no opinion upon. If there was any substance in the quoted part, as originally drawn, it is likely counsel would have seen to it that it was brought here in proper form.
[176]*176There was no error in refusing instructions for defendant.
TV. Error is predicated of a ruling of the court permitting plaintiff to show the noise of the M. K. & T. train, and further that any experienced person observing the trains could see that the two would pass at about the place she was struck. It is argued these were specifications of negligence not pleaded in the petition. But these facts were evidential. They related to the charge of a failure to use due care in warning and stopping. We think the point without substance.
V. The court modified and gave for defendant instruction 15, reading: “The court instructs the jury that under the evidence in this case the plaintiff was a trespasser on defendant’s railroad track and the defendant owed her no duty in the first instmce except to warn her by the usual signals of the approach of the train in time for her to step off the track and avoid being struck.” (Note: the italicized clause was written in by the court). As originally written the instruction was bad in excluding any duty to stop under any circumstances. . Even as modified and given it is not in accord with the bulk of defendant’s testimony which pointed to a situation at the time apparently demanding the instantaneous application of the air with the blowing of the whistle. If it did any harm it did harm to plaintiff, not defendant.
VI. It is next argued that the inflammatory argument, of plaintiff’s counsel was grossly prejudicial and that the court erred in overruling defendant’s objections thereto and in failing to rebuke counsel: and next that the verdict is excessive. We do not think the verdict excessive. Plaintiff is confessedly a permanent cripple, her chances to get on in life are lessened, her injuries are extremely grave and her sufferings pro[177]*177longed, aconte and not over. There is no evidence of simulation or hysteria. She asked $40,000 and got one-fourth of it. Compared with many judgments we meet with here, it was sober and modest, reflecting credit on the management of defendant’s counsel.
We have examined with pains the colloquies between court and counsel during the jury argument of Mr. Harrington on behalf of plaintiff. In some of them there was no ruling by the court and no exceptions saved for a failure to rule. In some of them the court on request did admonish and rebuke him. In others objections were made and sustained and no request was made to rebuke counsel. , In still others the objections were without vitality.
We do not feel justified in reversing the judgment because counsel by inadvertence was betrayed during the hot foot of the argument into straying a little outside the record, for which he was admonished by the court. To my mind the ease is not a close one, and sure it is that the size of the verdict does not show that the inflamation, if any, arguendo, bred unseemly infla-mation in the mind of the jury.
The premises all considered, the judgment should be affirmed. It is so ordered. Yalliant, G. J., and Ferriss, Kennish and Broion, JJ., concur; Woodson and Graves, JJ., dissent.