VALLIANT, J.
Plaintiffs’ minor child was run over and killed by a street car of the defendant, as they allege, through the negligence of defendant’s servants operating the car.
The negligence charged in the petition was the running of the car at a greater rate of speed than twelve miles an hour in violation of a city ordinance, and in running the car at a high rate of speed against and over the child while she was walking along the track, without giving any warning of its approach, and without exercising reasonable care to avoid striking her after the servants in charge of the car saw that she was in a posi[669] lion of danger, or would have seen it if they had exercised ordinary care.
The answer was a general denial and a plea of contributory negligence.
There are some undisputed facts in the case. They are as follows:
St. John avenue is a public street in Kansas City, running east and west; Jackson street, running north and south, crosses it at right angles; Elmwood avenue, which is parallel with and east of Jackson street, also crosses St. John avenue at right angles. . The distance from Jackson street to Elmwood avenue is half a mile, and there is no other street crossing St. John avenue between those two. St. John avenue is the only open thoroughfare running east and west through a section about a mile wide, and it is, therefore, a much-used highway for people living in that part of the city. ' The defendant maintains a double-track street railroad along the center of St. John avenue. Between Jackson street and Elmwood avenue, St. John avenue is not paved or sidewalked, except a sidewalk in front of the plaintiffs ’ premises, and except that along the center of the street, a space sixteen feet wide in which is laid defendant’s tracks, there is a surface of broken stone and granite. In consequence of the otherwise unpaved condition of the street, the travel both for vehicles and pedestrians is along that sixteen-foot space, particularly so in wet weather when the street is muddy. People usually walked in the railroad tracks because it was better walking than on the street outside, and the children going to school took that course.
The plaintiffs ’ residence is on a lot that fronts fifty • feet on the north side of St. John avenue. From the west line of plaintiffs’ lot to the east line of Jackson street is 208 feet. Farther to the east is the residence of Mr. Owen; from his house to Jackson street is 660 feet. Elmwood avenue is still to the east of Mr. Owen’s house.
[670] On the morning of February 6, 1900, plaintiffs’ two children, a girl aged eleven years ten and a half months, and a boy about two years younger, on their way to school, were on the north track of defendant, when a car of defendant going in the same direction approached behind them and struck the girl and killed her.
In addition to the above undisputed facts, there were other facts about which there was conflict in the evidence, the testimony for the plaintiffs tending to show that the facts were one way, that for the defendant another. If the facts were as .the plaintiffs’’testimony tended to prove they were, the plaintiffs were entitled to recover; but if the facts were proved to be as the evidence relied upon by the defendant tended to prove, then the verdict should have been for the defendant. The verdict was for the plaintiffs for $5,000, and judgment accordingly, from which the. defendant appeals.
I. The question in the case, in our judgment, is one of fact. The principles of law governing it are well settled, and there is little if any real difference in that respect between the learned counsel.
Appellant contends that the testimony shows that these two children were walking on the north side of the north track at a safe distance therefrom as the car approached behind them, and when it had reached within ten or fifteen feet of them, they appeared by their movements suddenly to design crossing the track, and, as if with that purpose, did step on the track within that distance of the ear when it was going at its usual speed; that the motorman immediately saw the movement of the children, and did everything within his power to stop the ear, but it was impossible to do so; the boy escaped with a scratch, but the girl was crushed beneath the car. There was evidence tending to prove that these were the facts, and the jury were instructed that if they found those to be the facts their verdict should be for the defendant.
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VALLIANT, J.
Plaintiffs’ minor child was run over and killed by a street car of the defendant, as they allege, through the negligence of defendant’s servants operating the car.
The negligence charged in the petition was the running of the car at a greater rate of speed than twelve miles an hour in violation of a city ordinance, and in running the car at a high rate of speed against and over the child while she was walking along the track, without giving any warning of its approach, and without exercising reasonable care to avoid striking her after the servants in charge of the car saw that she was in a posi[669] lion of danger, or would have seen it if they had exercised ordinary care.
The answer was a general denial and a plea of contributory negligence.
There are some undisputed facts in the case. They are as follows:
St. John avenue is a public street in Kansas City, running east and west; Jackson street, running north and south, crosses it at right angles; Elmwood avenue, which is parallel with and east of Jackson street, also crosses St. John avenue at right angles. . The distance from Jackson street to Elmwood avenue is half a mile, and there is no other street crossing St. John avenue between those two. St. John avenue is the only open thoroughfare running east and west through a section about a mile wide, and it is, therefore, a much-used highway for people living in that part of the city. ' The defendant maintains a double-track street railroad along the center of St. John avenue. Between Jackson street and Elmwood avenue, St. John avenue is not paved or sidewalked, except a sidewalk in front of the plaintiffs ’ premises, and except that along the center of the street, a space sixteen feet wide in which is laid defendant’s tracks, there is a surface of broken stone and granite. In consequence of the otherwise unpaved condition of the street, the travel both for vehicles and pedestrians is along that sixteen-foot space, particularly so in wet weather when the street is muddy. People usually walked in the railroad tracks because it was better walking than on the street outside, and the children going to school took that course.
The plaintiffs ’ residence is on a lot that fronts fifty • feet on the north side of St. John avenue. From the west line of plaintiffs’ lot to the east line of Jackson street is 208 feet. Farther to the east is the residence of Mr. Owen; from his house to Jackson street is 660 feet. Elmwood avenue is still to the east of Mr. Owen’s house.
[670] On the morning of February 6, 1900, plaintiffs’ two children, a girl aged eleven years ten and a half months, and a boy about two years younger, on their way to school, were on the north track of defendant, when a car of defendant going in the same direction approached behind them and struck the girl and killed her.
In addition to the above undisputed facts, there were other facts about which there was conflict in the evidence, the testimony for the plaintiffs tending to show that the facts were one way, that for the defendant another. If the facts were as .the plaintiffs’’testimony tended to prove they were, the plaintiffs were entitled to recover; but if the facts were proved to be as the evidence relied upon by the defendant tended to prove, then the verdict should have been for the defendant. The verdict was for the plaintiffs for $5,000, and judgment accordingly, from which the. defendant appeals.
I. The question in the case, in our judgment, is one of fact. The principles of law governing it are well settled, and there is little if any real difference in that respect between the learned counsel.
Appellant contends that the testimony shows that these two children were walking on the north side of the north track at a safe distance therefrom as the car approached behind them, and when it had reached within ten or fifteen feet of them, they appeared by their movements suddenly to design crossing the track, and, as if with that purpose, did step on the track within that distance of the ear when it was going at its usual speed; that the motorman immediately saw the movement of the children, and did everything within his power to stop the ear, but it was impossible to do so; the boy escaped with a scratch, but the girl was crushed beneath the car. There was evidence tending to prove that these were the facts, and the jury were instructed that if they found those to be the facts their verdict should be for the defendant.
[671] But there was testimony upon which the plaintiffs rely which tended to prove the following facts: These children came out of the gate in front of their father’s house, walked straight to the north track and went upon it; the boy undertook to walk on top of the north rail and was doing so, his sister walking in the track and holding his hand to assist him in accomplishing his feat; that they continued to walk in that way until the car was upon them; the boy jumped to the right and barely escaped, but the girl was caught. These children then on the track, were in plain view of the motorman, if he had been looking, from the time he reached Mr. Owen’s house until he struck them. When the car struck the child it dragged her under its wheels fifty or sixty feet, and stopped twenty-five feet east of Jackson street; the point where she was struck, therefore, was seventy-five or eighty-five feet east of Jackson street. According to this testimony the point where the children went upon the track, that is, on a straight line from the gate in front of their father’s house,was 233 feet east of the east line of Jackson street. They walked, therefore, on the track 148 or 158 feet before the car struck them. One o'f the witnesses, a school girl thirteen years old, who lived east of Mr. Owen’s house, was walking west on the south track, and saw these children when they came out of their gate walking towards the track. She waved to them and thought to overtake them; just after that as she came opposite Mr. Owens’s house, this car passed her; then she stepped behind it on the north track, and continued to walk west in that track. The car shut off her view of the children, and she saw them no more until after the accident. The evidence was also to the effect that the gong was not sounded, and that the children had no.warning of the approach of the ear; also that the motorman did not have his hands on the appliances for controlling the car, but was leaning against the car and conversing with the conductor; also that the car was running unusually fast. If the jury believed the evi[672] deuce tending to prove those facts they were bound to find a verdict for the plaintiffs, even though they also believed that the children were guilty of negligence in walking on the track. The motorman, if he was looking, saw the children at least from the time he passed Mr. Owens’s house which was over four hundred feet east of the point at which they went upon the track, so that he ran more than five hundred feet with the children in view before he struck them. Of course, the children would have, seen the car approaching them if they had looked in that direction, and it was negligence in them not to have looked. And the motorman had a right to presume in the first instance that they had looked or would look, and that seeing the car coming they would get out of the way. But it was his duty to be on the constant watch, and in the event it became evident that they were not observing the care they should observe, it became his duty to avoid running upon them if by ordinary care with the means in his power he could do so. Whether it must have become evident to the motorman in this case, presuming he was on the lookout, that these children were heedless of the approaching car and negligently unmindful of their danger, was a question for the jury. If they believed from the evidence that a reasonable man in the motorman’s place, on the watch and mindful that he was running a dangerous machine, would have seen that these two children were so absorbed in the little exploit the boy was trying to accomplish, balancing himself to walk on the rail with the assistance of his sister holding his hand, and that they were apparently oblivious to the approaching danger, then the jury had the right to say that the motorman knew, or that if he had exercised ordinary care would have known, the danger in time to have averted the accident, and failing to do so the defendant is liable.
We do not attach any inaportance to the fact that the plaintiff's’ testimony tended to show that the car was running faster than twelve miles an hour in violation of [673] the city ordinance. Twelve miles an hour, under the circumstances of this case, would have been as effective of the result as a greater speed. Assuming that he was going only twelve miles an hour, if the plaintiff’s evi-. deuce is believed, the motorman saw the peril of the child in time to have averted the accident, but without making any effort to do so, without even sounding his gong, he ran upon them.
The general rule of law that a plaintiff can not recover damages for injuries sustained by him when his own negligence has contributed with that of the defendant to cause the injuries, has one exception, and that is, if the defendant before the injury is inflicted discovers the peril (or in some cases, even where by the exercise of ordinary care the defendant might have discovered it) and has it in his power then and there by the exercise of ordinary care to avert the injury but fails to do so, he is liable. That is the law in this State, so declared in Kellny v. Railroad, 101 Mo. 67, and iterated in Morgan v. Railroad, 159 Mo. 262.
The facts which the plaintiffs’ testimony tends to prove bring this case within that exception, and for that reason the court did not err in refusing the instruction asked by the defendant in the nature of a demurrer to the evidence.
There is one other ground assigned by appellant why the demurrer to the evidence should have been sustained: that is, that there was no evidence to prove that the deceased was unmarried. It is true the record shows no evidence offered on that point, but it would be so improbable that a child, not quite twelve years old, living with its parents and going to school from their home, was married, that we should presume the contrary in the absence of any suggestion to the trial court that proof on that point was desired.
The criticism of the action of the court in the giving and refusing of instructions are all based on separate [674] features of the same propositions, which is appellant’s main assignment of error;' that is, there was no evidence to sustain the plaintiffs’ case, and an instruction for a nonsuit should have been given. We have already-discussed that proposition.
We find no error in the record and the judgment is therefore affirmed. All concur.