BLAIE, C.
Plaintiff recovered judgment for $3000 as damages for the death of her husband, George Hunt, and defendant appealed. The petition contains two counts — one invoking the humanitarian doctrine and the other alleging that Hunt’s death was due to defendant’s negligence in violating an ordinance of the city of Cape Girardeau restricting the speed of trains to five miles per hour.
The answer contained, among other things, a plea of contributory negligence.
At the close of plaintiff’s evidence and again at the close of all the evidence in the case defendant requested the trial court to direct the jury to find for it on both counts and excepted to the refusal to do so. On the first count the jury expressly found for defendant and thus denied plaintiff’s right to recover on the humanitarian doctrine. The verdict was for plaintiff on the second count, and it is with that count alone we are now concerned. It is contended the evidence pertinent to the issues under the second count is not sufficient to support the verdict rendered thereon.
The relevant facts are as follows: Defendant operates a railroad passing through Cape Girardeau from north to south and entering the city at a point about 130 feet north of Sloan Creek in that city, and an ordinance of the city was in force restricting the speed of trains to five miles per hour within the city limits. On [274] the night he was killed, ITnnt had been drinking’ and about midnight started home accompanied by two acquaintances. The three proceeded north across the railroad bridg’e over Sloan Creek and thence along the track a few feet to a point where a cinder path led westwardly from the track, and there, about twenty or thirty minutes after midnight, Hunt’s companions left the railroad and went to a brothel where they spent the remainder of the night. When these men left him Hunt ‘‘started like he was going on up the track home ’ ’ and they supposed he did so but gave him no further attention. One of them testified that just before they left him Hunt was “staggering to some extent” and was somewhat under the influence of liquor. About an hour and ten minutes thereafter one of defendant’s trains struck and killed Hunt. The train ran 24Q to 250 feet farther and stopped. Hunt’s body was found very near the spot where his two companions left him but on the west side of the. track, a few feet north of a switchstand, his head lying very near the north end of the trestle which forms the north approach to defendant’s bridge over Sloan Creek. A bundle of clothing, probably a suit of overalls in which Hunt worked, lay five or six feet north of the body and between the rails. There was a little blood on the west rail and there was a pool of blood west of the track at the point where Hunt’s head rested after he was struck. The upper front quarter of the right side of the man’s head was stricken or crushed off. There were no other wounds of any consequence on the body. ■ There was no external evidence of previous violence. So far as plaintiff’s evidence is concerned there was nothing to show the speed at which the train was running when it struck Hunt unless it can be said to be inferable from the distance the train ran after striking him and the testimony that such a train running ten miles an hour could be stopped in about 150 or 300 feet. There was, however, no evidence for plaintiff tending to show whether [275] the brakes were applied before, at the time or after the engine struck Hunt.
For defendant the engineer who had charge of the train which killed Hunt testified that the track north of Sloan Creek was straight for about 800 feet; that about 1:38 a. m. he rounded the curve and came out upon this tangent at the rate of forty miles per hour; that when his engine reached a point about 700 feet from the north end of the bridge he saw what he suspected to be a man lying with his head on or near the west rail and near the north end of the bridge and immediately made every effort, consistent with the safety of his train, to stop, but was unable to do so, though he reduced the speed of the train so that it was running about fifteen or eighteen miles per hour when Hunt was struck; that Hunt was lying with his head on a bundle of clothing on or near the west rail, his head partly over the rail; that his face was upward and his body and feet extended westward and away from the track; that Hunt did not move at all but lay supine until the step attached to the pilot, and about four and one-half or five inches above the rail, struck him ; that it was this step which inflicted the wound above described, and an examination thereafter disclosed that it was bent and had blood and hair upon it; that the force of the blow turned the body somewhat and turned it partially around.
Contributory Negligence: As Matter of Law: Asleep Near Railroad T rack. The violation of a valid and applicable city ordinance restricting the speed of trains is negligence per se, and substantial evidence of such violation plus like evidence of a causal connection between such negligence and an injury is sufficient to sustain a verdict against the violator, all issues being properly submitted, unless contributory negligence appears as a matter of law.
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BLAIE, C.
Plaintiff recovered judgment for $3000 as damages for the death of her husband, George Hunt, and defendant appealed. The petition contains two counts — one invoking the humanitarian doctrine and the other alleging that Hunt’s death was due to defendant’s negligence in violating an ordinance of the city of Cape Girardeau restricting the speed of trains to five miles per hour.
The answer contained, among other things, a plea of contributory negligence.
At the close of plaintiff’s evidence and again at the close of all the evidence in the case defendant requested the trial court to direct the jury to find for it on both counts and excepted to the refusal to do so. On the first count the jury expressly found for defendant and thus denied plaintiff’s right to recover on the humanitarian doctrine. The verdict was for plaintiff on the second count, and it is with that count alone we are now concerned. It is contended the evidence pertinent to the issues under the second count is not sufficient to support the verdict rendered thereon.
The relevant facts are as follows: Defendant operates a railroad passing through Cape Girardeau from north to south and entering the city at a point about 130 feet north of Sloan Creek in that city, and an ordinance of the city was in force restricting the speed of trains to five miles per hour within the city limits. On [274] the night he was killed, ITnnt had been drinking’ and about midnight started home accompanied by two acquaintances. The three proceeded north across the railroad bridg’e over Sloan Creek and thence along the track a few feet to a point where a cinder path led westwardly from the track, and there, about twenty or thirty minutes after midnight, Hunt’s companions left the railroad and went to a brothel where they spent the remainder of the night. When these men left him Hunt ‘‘started like he was going on up the track home ’ ’ and they supposed he did so but gave him no further attention. One of them testified that just before they left him Hunt was “staggering to some extent” and was somewhat under the influence of liquor. About an hour and ten minutes thereafter one of defendant’s trains struck and killed Hunt. The train ran 24Q to 250 feet farther and stopped. Hunt’s body was found very near the spot where his two companions left him but on the west side of the. track, a few feet north of a switchstand, his head lying very near the north end of the trestle which forms the north approach to defendant’s bridge over Sloan Creek. A bundle of clothing, probably a suit of overalls in which Hunt worked, lay five or six feet north of the body and between the rails. There was a little blood on the west rail and there was a pool of blood west of the track at the point where Hunt’s head rested after he was struck. The upper front quarter of the right side of the man’s head was stricken or crushed off. There were no other wounds of any consequence on the body. ■ There was no external evidence of previous violence. So far as plaintiff’s evidence is concerned there was nothing to show the speed at which the train was running when it struck Hunt unless it can be said to be inferable from the distance the train ran after striking him and the testimony that such a train running ten miles an hour could be stopped in about 150 or 300 feet. There was, however, no evidence for plaintiff tending to show whether [275] the brakes were applied before, at the time or after the engine struck Hunt.
For defendant the engineer who had charge of the train which killed Hunt testified that the track north of Sloan Creek was straight for about 800 feet; that about 1:38 a. m. he rounded the curve and came out upon this tangent at the rate of forty miles per hour; that when his engine reached a point about 700 feet from the north end of the bridge he saw what he suspected to be a man lying with his head on or near the west rail and near the north end of the bridge and immediately made every effort, consistent with the safety of his train, to stop, but was unable to do so, though he reduced the speed of the train so that it was running about fifteen or eighteen miles per hour when Hunt was struck; that Hunt was lying with his head on a bundle of clothing on or near the west rail, his head partly over the rail; that his face was upward and his body and feet extended westward and away from the track; that Hunt did not move at all but lay supine until the step attached to the pilot, and about four and one-half or five inches above the rail, struck him ; that it was this step which inflicted the wound above described, and an examination thereafter disclosed that it was bent and had blood and hair upon it; that the force of the blow turned the body somewhat and turned it partially around.
Contributory Negligence: As Matter of Law: Asleep Near Railroad T rack. The violation of a valid and applicable city ordinance restricting the speed of trains is negligence per se, and substantial evidence of such violation plus like evidence of a causal connection between such negligence and an injury is sufficient to sustain a verdict against the violator, all issues being properly submitted, unless contributory negligence appears as a matter of law.
In this case the position of the body after Hunt was struck, its nearness to the rail, the nature of the [276] •wound which caused his death and the absence of other wounds save such scratches and bruises as were necessarily incident to his being hurled upon the cinders beside the track, demonstrate that Hunt must, when struck, have been lying with his head on or near the west rail of defendant’s track and must have been struck in some such manner as the engineer testified he was. The plaintiff’s evidence shows that an examination of Hunt’s head disclosed that the “skull was gone down on the forehead just above the eye and the edge of the wound was just -about the middle of the forehead, extending upward and backward, including the forward fourth of the right side;” to that extent “the skull was missing; it was cut off on the right side down to the eye-brow just about in the center, about one-fourth of the'skull above the ear; not back of the ear to any extent; . . . only a portion of the brain was there.” It is inconceivable that a car or engine wheel could have thus crushed or cut a corner out of a man’s skull, and it is impossible that Hunt could have been sitting or standing when he received the wound described without receiving others on his trunk and limbs, unless he stood beside the track and held his head out over it, an inference which would destroy plaintiff’s case at once. There is no escape from the conclusion that Hunt was lying with his head against or upon the rail. There is evidence on plaintiff’s part that he (Hunt) was in good health and there is no intimation that he was subject to epilepsy or any other like ailment. Defendant offered some evidence that Hunt was dead before the engine struck him, but this could not aid plaintiff. The testimony by which defendant attempted to show that Hunt and one Fields were on bad terms was not sufficient to warrant an inference that Hunt had met with violence and had been placed on or near the track, particularly ■ in view of the absence of any external evidences of violence save those naturally incident to the blow delivered by defendant’s [277] engine. If Hunt was awake and lying on or beside tbe track there could be, of course, no recovery. The only theory there is really substantial evidence to support is that Hunt was asleep on or near the west rail of the track. Whether he was drunk or sober is, in that event, of no consequence. [Murphy v. Railroad, 228 Mo. l. c. 82.] It is settled law that “lying down upon a railroad track is obviously the grossest negligence, which nothing can well excuse” (2 Shearman & Redfield, Negl. [6 Ed.], sec. 480) and while the humanitarian doctrine applies to one who has thus exposed himself to injury, yet the jury in the case found against plaintiff on that theory, and it cannot be further considered. One who lies down and goes to sleep upon the track of a railway over which trains are likely to pass cannot possibly be said to do so in reliance upon the company’s obligation to observe an ordinance limiting the speed of trains, and the cases cited in which persons were injured while lawfully relying upon such observance are not applicable. The negligence of the company in running its train in violation of the ordinance clearly would have resulted in no injury to Hunt except for his own contributory negligence in placing himself, in the night, upon the track. Whatever duty defendant owed persons walking upon the track its violation of the speed ordinance was but simple negligence in tbe circumstances of this case, liability for which is subject to be defeated by the contributory negligence of the injured person.
The closing paragraphs in the opinion in Trigg v. Water, Light & Transit Company, 215 Mo. l. c. 544, lay down the rule applicable here. In that ease no speed, ordinance was violated but it was contended the rate of speed was negligent under the common law. This difference does not affect the applicability to this ease of the rule approved in that. A valid ordinance restricting the speeds of trains simply makes a speed violative of it negligent as a matter of law; whereas, in [278] the absence of such an ordinance, it is usually for the jury to say whether the rate was a negligent one, all the circumstances being considered. After the jury find, in the absence of such an ordinance, that a train was moving at a speed which in the circumstances was negligent, the effect of the negligent speed, so far as the question here involved is concerned, is exactly the same as if a speed ordinance had been violated.
The case last cited and that of Sullivan v. Railroad, 117 Mo. l. c. 224, and cases cited, disclose that under the law this judgment must be reversed.
Brown, G., concurs.
PER CURIAM.
This cause coming into Banc on a dissent, the foregoing opinion of Blair, 0., is adopted as the opinion of the court.
All the judges concur, except Lamm, G. J., who dissents in separate opinion in which W alicer, J., joins.