VALLIANT, J.
Plaintiff’s wife waskilled by being run over by a locomotive on defendant’s road in the city of Pacific; this suit was brought to recover $5,000 damages under the provisions of section 2865, Revised Statutes 1899; the trial resulted in a verdict and judgment for plaintiff for that amount, and defendant has appealed.
The petition charges that the locomotive was negligently run at a high and excessive rate of speed; that the bell was not rung or kept ringing as the statute requires, and the locomotive was run in excess of six miles an hour in violation of an ordinance of the city.
The answer was a general denial and a plea of contributory negligence,— reply, general denial.
The testimony for plaintiff tended to show as follows : An ordinance of the city prohibiting the running of locomotives or trains through or within the city limits at a rate of speed in excess of six miles an hour. Defendant’s railroad tracks run east and "west through the city. There is a main track, one side track north of the main track, and two or more side tracks south of it; we are concerned only with the main track and the side track north of it. Between these two tracks was a space eight feet wide. First street runs north and south, crossing the tracks at right angles. There is a sidewalk on each side of the street. A freight train had just come in from the west, headed east, and stop[138]*138ped on this north side track, with the point of the engine at or perhaps a little over the west line of the west sidewalk; it stood there puffing or making the noise usual from engines just brought to a stop with steam on.
The plaintiff’s wife with a party of friends approached from the north on First street, walking south toward the railroad tracks aiming to cross to the south side of the tracks. Something detained the plaintiff’s wife a moment on the north side; while the rest of the party walked on across the tracks to the south side. The plaintiff’s wife resumed her course walking along the west side of First street until she came near the front of the engine of the freight train, then she passed over to the east sidewalk, then on south, crossing the side track on which the freight train was standing, crossing the eight-foot space between the tracks, stepped with one foot on the main track and in that instant a locomotive coming east on the main track struck her and killed her. Her body fell on the north side of the track.
The engine which struck the plaintiff’s wife was what they called a helper, its use being to help trains over a grade just west of Pacific; it had at this time no cars attached to it and was being run backward, that is, tender in front. It came without ringing the bell and at a rate of speed of which the plaintiff’s several witnesses gave various estimates, ranging from fifteen to forty miles an hour. Looking west from the crossing at First street, the main track was straight for three hundred yards and there was nothing in the way to obstruct the west view of one standing in the eight-foot space between the tracks. So far as the witnesses could discern, the deceased after passing the front of the freight train continued onward until she stepped upon the main track without pausing and without turning her head to look in either direction, keeping her face straight to the south; some of the plaintiff’s [139]*139witnesses said she was running, others that she was walking fast, all said she was looking straight south and going fast.
At the close of the plaintiff’s case defendant asked an instruction in the nature of a demurrer to the evidence which was refused and exception taken.
The defendant’s evidence was to the effect that the engine was running only six or seven miles an hour and that the bell was ringing all the while. In other respects it was not materially different from that of plaintiff. At the close of all the evidence the defendant again asked an instruction in the nature of a demurrer to the evidence which was also refused and exception taken.
The demurrer to the evidence should have been sustained. Conceding that the engine was going at an unlawful rate of speed, and that the bell was not ringing and therefore that defendant was negligent, still the defendant was not liable if there was negligence of the deceased which directly contributed to the accident. The testimony shows that the situation was such that if the deceased, after passing the freight engine and before stepping on the main track, had looked she would have seen the helper engine coming and could have paused in a place of safety until it passed, but that she did not look and went on to her death.
Counsel for respondent think that one of the witnesses testified that she did stop and look, but that is a mistake; the witness said that she stopped ten, twelve, or fifteen feet from the crossing, alluding probably to a stop before passing in front of the freight engine. Twelve or fifteen feet would have placed her north of the freight engine, and ten feet would have located her in front of it; her view of the main track to the west came only after she had passed into the eight-foot space between the tracks.
It is argued, also, by plaintiff’s counsel that without pausing and without turning her face to the west [140]*140she could by simply turning her eyes have seen the engine coming for a distance of two hundred or three hundred feet, and that, recognizing as we should the natural law of self-preservation, she should be presumed to have done so. Taking that assumed fact for a foundation, the learned counsel for plaintiff build upon it the argument that seeing the engine at least two hundred or three hundred feet away she trusted that the men in charge of it were obeying the ordinance and running not faster than six miles an hour and therefore calculated that she could cross the main track before the engine reached her.
In making that argument the counsel must be presumed to have abandoned the plaintiff’s position in so far as it rested on negligence in failing to ring the bell, because the only purpose of the law in requiring' the bell to be rung is to attract attention, but if she saw the engine coming, as plaintiff’s counsel contend she did, 'she needed no bell to attract her attention.
The theory on which this argument rests for a foundation is itself founded on a debatable proposition. The distance one may see by a side glance without turning his face varies according to the angle at which the glance is given. Whether one standing within two, four or six feet of the main track could by such a glance have seen this engine two hundred feet away is a question that men might differ about. But that one could have seen it twice that distance by turning his head is certain.
The evidence was that deceased had made but one step on the track when the engine struck her. Miss Alice Dailey, who was the principal witness for the plaintiff, and a very intelligent one, said that the deceased had only one foot across the rail when she was struck. The witnesses all said that she was going fast and looking straight ahead. Under this evidence, therefore, it is mere conjecture to say that she gave a [141]*141side glance to the right and saw the engine two hundred feet away or that she saw it at all.
The plaintiff’s testimony as to the speed the engine was going was all that of non-expert witnesses, and their inaccuracy is shown hy the variety of their estimates, from fifteen to forty miles an hour.
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VALLIANT, J.
Plaintiff’s wife waskilled by being run over by a locomotive on defendant’s road in the city of Pacific; this suit was brought to recover $5,000 damages under the provisions of section 2865, Revised Statutes 1899; the trial resulted in a verdict and judgment for plaintiff for that amount, and defendant has appealed.
The petition charges that the locomotive was negligently run at a high and excessive rate of speed; that the bell was not rung or kept ringing as the statute requires, and the locomotive was run in excess of six miles an hour in violation of an ordinance of the city.
The answer was a general denial and a plea of contributory negligence,— reply, general denial.
The testimony for plaintiff tended to show as follows : An ordinance of the city prohibiting the running of locomotives or trains through or within the city limits at a rate of speed in excess of six miles an hour. Defendant’s railroad tracks run east and "west through the city. There is a main track, one side track north of the main track, and two or more side tracks south of it; we are concerned only with the main track and the side track north of it. Between these two tracks was a space eight feet wide. First street runs north and south, crossing the tracks at right angles. There is a sidewalk on each side of the street. A freight train had just come in from the west, headed east, and stop[138]*138ped on this north side track, with the point of the engine at or perhaps a little over the west line of the west sidewalk; it stood there puffing or making the noise usual from engines just brought to a stop with steam on.
The plaintiff’s wife with a party of friends approached from the north on First street, walking south toward the railroad tracks aiming to cross to the south side of the tracks. Something detained the plaintiff’s wife a moment on the north side; while the rest of the party walked on across the tracks to the south side. The plaintiff’s wife resumed her course walking along the west side of First street until she came near the front of the engine of the freight train, then she passed over to the east sidewalk, then on south, crossing the side track on which the freight train was standing, crossing the eight-foot space between the tracks, stepped with one foot on the main track and in that instant a locomotive coming east on the main track struck her and killed her. Her body fell on the north side of the track.
The engine which struck the plaintiff’s wife was what they called a helper, its use being to help trains over a grade just west of Pacific; it had at this time no cars attached to it and was being run backward, that is, tender in front. It came without ringing the bell and at a rate of speed of which the plaintiff’s several witnesses gave various estimates, ranging from fifteen to forty miles an hour. Looking west from the crossing at First street, the main track was straight for three hundred yards and there was nothing in the way to obstruct the west view of one standing in the eight-foot space between the tracks. So far as the witnesses could discern, the deceased after passing the front of the freight train continued onward until she stepped upon the main track without pausing and without turning her head to look in either direction, keeping her face straight to the south; some of the plaintiff’s [139]*139witnesses said she was running, others that she was walking fast, all said she was looking straight south and going fast.
At the close of the plaintiff’s case defendant asked an instruction in the nature of a demurrer to the evidence which was refused and exception taken.
The defendant’s evidence was to the effect that the engine was running only six or seven miles an hour and that the bell was ringing all the while. In other respects it was not materially different from that of plaintiff. At the close of all the evidence the defendant again asked an instruction in the nature of a demurrer to the evidence which was also refused and exception taken.
The demurrer to the evidence should have been sustained. Conceding that the engine was going at an unlawful rate of speed, and that the bell was not ringing and therefore that defendant was negligent, still the defendant was not liable if there was negligence of the deceased which directly contributed to the accident. The testimony shows that the situation was such that if the deceased, after passing the freight engine and before stepping on the main track, had looked she would have seen the helper engine coming and could have paused in a place of safety until it passed, but that she did not look and went on to her death.
Counsel for respondent think that one of the witnesses testified that she did stop and look, but that is a mistake; the witness said that she stopped ten, twelve, or fifteen feet from the crossing, alluding probably to a stop before passing in front of the freight engine. Twelve or fifteen feet would have placed her north of the freight engine, and ten feet would have located her in front of it; her view of the main track to the west came only after she had passed into the eight-foot space between the tracks.
It is argued, also, by plaintiff’s counsel that without pausing and without turning her face to the west [140]*140she could by simply turning her eyes have seen the engine coming for a distance of two hundred or three hundred feet, and that, recognizing as we should the natural law of self-preservation, she should be presumed to have done so. Taking that assumed fact for a foundation, the learned counsel for plaintiff build upon it the argument that seeing the engine at least two hundred or three hundred feet away she trusted that the men in charge of it were obeying the ordinance and running not faster than six miles an hour and therefore calculated that she could cross the main track before the engine reached her.
In making that argument the counsel must be presumed to have abandoned the plaintiff’s position in so far as it rested on negligence in failing to ring the bell, because the only purpose of the law in requiring' the bell to be rung is to attract attention, but if she saw the engine coming, as plaintiff’s counsel contend she did, 'she needed no bell to attract her attention.
The theory on which this argument rests for a foundation is itself founded on a debatable proposition. The distance one may see by a side glance without turning his face varies according to the angle at which the glance is given. Whether one standing within two, four or six feet of the main track could by such a glance have seen this engine two hundred feet away is a question that men might differ about. But that one could have seen it twice that distance by turning his head is certain.
The evidence was that deceased had made but one step on the track when the engine struck her. Miss Alice Dailey, who was the principal witness for the plaintiff, and a very intelligent one, said that the deceased had only one foot across the rail when she was struck. The witnesses all said that she was going fast and looking straight ahead. Under this evidence, therefore, it is mere conjecture to say that she gave a [141]*141side glance to the right and saw the engine two hundred feet away or that she saw it at all.
The plaintiff’s testimony as to the speed the engine was going was all that of non-expert witnesses, and their inaccuracy is shown hy the variety of their estimates, from fifteen to forty miles an hour.
Whatever was apparent to them as to the speed of the engine was as apparent to the deceased if, as is contended, she looked and saw it. Her friend, Miss Dailey, and her brother-in-law, Mr. Busch, who were of her party and who had passed safely over the crossing before her, turned around in anxiety for her safety and were looking towards her. Mr. Busch ran towards her. They saw and realized her danger and what they saw and realized she would have seen and realized if she had looked before stepping on the track. They probably saw the on-coming engine before she could have seen it, because they had reached the south side of the track while her view was obstructed by the freight train, but after she had passed the front of the freight engine and had come into the eight-foot space between the two tracks she had as clear a view as her friends had and was as capable of judging the speed of the engine as they were, — but she failed to look.
The facts in this case are very different from those in Hutchinson v. Railroad, 161 Mo. 246, to which we are referred. In that case it was after dark in the evening, the deceased heard the whistle and saw the headlight of the engine about half a mile distant when she started across the tracks; if the engine had been running within the six-mile-speed limit she would have had ample time to cross, even pausing as she did to pick up a scarf she had dropped. The court held that, in the absence of proof that she knew or had reason to apprehend to the contrary, she had a right to presume that the engineer was observing the ordinance and to regulate her movements accordingly. But tlie accident we are now discussing did not occur at night; it oc[142]*142curred at nine o ’clock in the morning, and the plaintiff’s witnesses say that they saw that the engine was running at a high rate of speed. There was not one of them shown to be more competent to judge of the speed than the deceased; the only difference in that respect between them and her was that they looked and she did not. If one sees or has reason to believe that the engine is running in violation of the speed ordinance he has no right to risk his life on a presumption that the ordinance is being.observed. There is in this case no ground on which to construct a rational presumption that the deceased trusted that the engineer was obeying the ordinance. There is no evidence on which we can base a finding that she saw the engine at all until in the moment of peril. It was imminently dangerously close when she stepped on the track. All the eyewitnesses say she was coming fast, she put her foot over the rail and in that instant the engine struck her. She was probably in a hurry to overtake her friends who had gone on ahead and she was possibly in a state of nervous excitement at having to pass so close to the front of the throbbing freight engine, but however that may be, and whatsoever the cause, she forgot to look at the danger into which she was running.
Plaintiff’s case rests on two propositions: first, that the deceased saw the engine coming and trusted that it was running within the limits of the speed ordinance ; second, that she did not see it coming and trusted that none was coming because she heard no bell. The plaintiff may choose which of these two positions he mil take, but he cannot take both, because they are inconsistent; the proof of one disproves the other. If the deceased saw the engine coming she did not suffer from failure to ring the bell, if she did not see it there was no occasion for her to take the speed ordinance into account in regulating her movements.
The plaintiff’s position in regard to the failure to give the statutory signal is that when he proves that the [143]*143bell was not rung and that the accident occurred, he makes out a prima facie case and the burden is shifted on the defendant to show that the failure to give the signal was not the cause of the accident.
The statute requiring the signal by bell or whistle was the same prior to 1881. that it is now except in its last clause, which then was in these words: “and said corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect. ” [Sec. 806, R. S. 1879.] But in 1881 the section was amended by striking out these words and inserting in lieu of them these words: “and said corporation shall also be liable for all damages hereafter sustained at such crossing when such bell shall not be rung or such whistle sounded as required by this section, provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury” (Laws 1881, p. 79); and in that form the statute appears in our present revision (sec. 1102, R. S. 1899).
The purpose of that amendment was, as is rightly contended by the plaintiff’s counsel, to make the proof of the accident and the proof of failure to give the required signal sufficient for a prima facie case and to throw the burden of proving that the accident was not the result of the failure to give the signal on the defendant. It was so decided in Huckshold v. Railroad, 90 Mo. 548. Therefore, if the only evidence in this caiíe was proof of the accident and proof that the bell was not rung there would have been, according to the terms of the statute, a prima facie case, leaving the burden of proving facts to show non-liability on the defendant.
But Where the plaintiff in proving the accident proves also that it was not caused by the failure to give the signal, or that the person injured was guilty of negligence that directly contributed to the result, there [144]*144is left nothing for the defendant to prove. That is this case.
There are other points presented in the briefs but as what is above said disposes of the case there is no use of further discussion. The judgment is reversed.
All concur.