[284]*284DIVISION ONE.
Barclay, J.
All the counts of -the petition may be treated together, as the substantial issues arising upon each, are the same.
I. It is claimed by defendant that plaintiff was guilty of such contributory negligence in the circumstances as required the trial court to instruct the jury to find for the defendant.
The statute requiring a certain signal of bell or whistle, by an engine approaching a crossing of any public road, declares that, in event of failure to give such signal, the railway corporation shall be liable “for all damages which any person may hereafter sustain 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.” R. S. 1889, sec. 2608; Sess. Acts, 1881, p. 79.
This section shifts the burden of proof to the defendant as to the cause of such injuries as those here shown, sustained at public crossings, when no statutory signal has been given. But it does not change the established rule that if the plaintiff’s proof, in any case of this nature, discloses that the damages, for which redress is sought, resulted from another cause than the negligence of defendant in omitting the required danger signal (for example from plaintiff’s own want of ordinary care), there can be no recovery.
• The statute does not absolve persons approaching a public railway crossing, from exercising common prudence to avoid danger nor shift the responsibility to another,'should injury ensue from a failure to exercise it.
In determining the issue of contributory negligence there is no inflexible formula to apply to all cases. [285]*285Each must be ruled in view of the peculiar characteristics it exhibits. Acts, which in one state of circumstances might be justly pronounced obviously and conclusively negligent, may be consistent with ordinary prudence in a changed condition of the surroundings.
The case before us, in its present form, calls for an expression of opinion whether the plaintiff’s conduct in approaching and crossing the track was negligent as a matter of law. To warrant us in reversing the finding (by the trial court) that he was not, we must be satisfied that no other conclusion than that of plaintiff’s negligence in the premises is fairly deducible from the evidence, giving him the benefit .of every reasonable inference that may be drawn from it. Huhn v. Railroad (1877), 92 Mo. 440; Mauerman v. Siemerts (1879), 71 Mo. 101.
The particulars of plaintiff’s action and the appearance of the vicinity are fully set forth in the foregoing statement of the case, and need not be repeated.
It will be noted that the plaintiff stopped twice to listen for a' train; first, at a distance of one hundred and twenty feet, and, afterwards, at ninety feet from the track. He heard nothing. Assuming the truth of his evidence (as the present status of the litigation requires ), it is obvious that, had the signal been given by defendant, he would have been warned of the coming train in time to escape harm. His course, after his second stop, lay along a line which did not permit a view of a train until very near the track; according to his personal evidence until within a few feet of it, and, according to other evidence on his behalf, until twenty-one feet from it. When he, seated in the buggy, drawn by a double team, was at that distance, the horses necessarily were much closer to (probably within ten feet of) the rails, and moving forward at a brisk walk. He turned toward the west looking for a train, and, seeing none, turned eastward and discovered the engine close upon him. His horses were then nearly [286]*286across the rails so he struck them at once to hurry them forward, but the buggy did not clear the track in time to escape disaster, and the injuries followed as stated. Here plaintiff seems to have been looking and listening for danger at various points along the road. He could not look both ways at the same time when he reached the first point of clear observation. It so happened that he looked west, first, on reaching it, instead of east, and that when he looked east, in passing over the short space to the track, it was too late to be of any avail; but his action in the premises was not such as to indicate such recklessness or want of caution as would constitute negligence as a matter of law. We are not prepared to say that his conduct was different from what the man of average prudence would do in the same circumstances.
He was under no legal obligation to shape his action on the theory that the defendant would disregard the-plain requirements of law respecting a signal of its coming train. He was confronted with peculiar conditions, shown by the topography of the crossing, and was bound to use such care as would ordinarily be-exercised by an intelligent man amid such surroundings. Whether he did so or not, was a question of fact on the case here made. Johnson v. Railroad (1883), 77 Mo. 546 ; Kellogg v. Railroad (1879), 79 N. Y. 72; Greany v. Railroad (1886), 101 N. Y. 419; Davis v. New York Cent., etc., Co. (1872), 47 N. Y. 400 ; Randall v. Railroad (1882), 132 Mass. 269 ; Tyler v. Railroad (1884), 137 Mass. 238. The trial court did not err in refusing to give an instruction that plaintiff could not recover.
II. By one of the instructions (number 1) given for plaintiff, against defendant’s exception, the court declared the law to be that if the jury found the engine-bell was not duly rung (as required by the statute), “and that the steam-whistle attached to said engine was not sounded eighty rods from said crossing,” etc., then [287]*287(with the other necessary facts) there should be a verdict for plaintiff.
It is claimed that this is erroneous as requiring the whistle to be sounded exactly eighty rods from the crossing whereas the statute reads, “at least eighty rods from the place where the railroad shall cross,” etc. Sess. Acts, 1881, p. 79.
The giving of warning by either bell or whistle will answer the demand of the law. Van Note v. Railroad ( 1879), 70 Mo. 641. If there was evidence before us of a compliance with the statute, in regard to whistling, we should be obliged to consider the point above noted. But there is not. Defendant’s locomotive engineer testified that he sounded the whistle “about eighty rods east of the crossing,” and others on the same side corroborated him ; but neither he nor any witness for defendant asserted that the whistle had been thereafter sounded at intervals until reaching the crossing. On that point there is a complete blank in the evidence.
On plaintiff’s part there was considerable testimony that no signal of bell or whistle was given. On the other hand there is abundant evidence for defendant, showing the proper ringing of the bell. On that point the instruction mentioned is not challenged. But defendant’s own testimony has no tendency to show that the whistle was sounded as prescribed, and, therefore, the instruction, in the particular mentioned, cannot furnish a ground for reversal, having regard to the statutes which direct us to disregard irregularities in the proceedings “which shall not affect the substantial rights of the adverse party” (R. S. 1889, sec.
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[284]*284DIVISION ONE.
Barclay, J.
All the counts of -the petition may be treated together, as the substantial issues arising upon each, are the same.
I. It is claimed by defendant that plaintiff was guilty of such contributory negligence in the circumstances as required the trial court to instruct the jury to find for the defendant.
The statute requiring a certain signal of bell or whistle, by an engine approaching a crossing of any public road, declares that, in event of failure to give such signal, the railway corporation shall be liable “for all damages which any person may hereafter sustain 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.” R. S. 1889, sec. 2608; Sess. Acts, 1881, p. 79.
This section shifts the burden of proof to the defendant as to the cause of such injuries as those here shown, sustained at public crossings, when no statutory signal has been given. But it does not change the established rule that if the plaintiff’s proof, in any case of this nature, discloses that the damages, for which redress is sought, resulted from another cause than the negligence of defendant in omitting the required danger signal (for example from plaintiff’s own want of ordinary care), there can be no recovery.
• The statute does not absolve persons approaching a public railway crossing, from exercising common prudence to avoid danger nor shift the responsibility to another,'should injury ensue from a failure to exercise it.
In determining the issue of contributory negligence there is no inflexible formula to apply to all cases. [285]*285Each must be ruled in view of the peculiar characteristics it exhibits. Acts, which in one state of circumstances might be justly pronounced obviously and conclusively negligent, may be consistent with ordinary prudence in a changed condition of the surroundings.
The case before us, in its present form, calls for an expression of opinion whether the plaintiff’s conduct in approaching and crossing the track was negligent as a matter of law. To warrant us in reversing the finding (by the trial court) that he was not, we must be satisfied that no other conclusion than that of plaintiff’s negligence in the premises is fairly deducible from the evidence, giving him the benefit .of every reasonable inference that may be drawn from it. Huhn v. Railroad (1877), 92 Mo. 440; Mauerman v. Siemerts (1879), 71 Mo. 101.
The particulars of plaintiff’s action and the appearance of the vicinity are fully set forth in the foregoing statement of the case, and need not be repeated.
It will be noted that the plaintiff stopped twice to listen for a' train; first, at a distance of one hundred and twenty feet, and, afterwards, at ninety feet from the track. He heard nothing. Assuming the truth of his evidence (as the present status of the litigation requires ), it is obvious that, had the signal been given by defendant, he would have been warned of the coming train in time to escape harm. His course, after his second stop, lay along a line which did not permit a view of a train until very near the track; according to his personal evidence until within a few feet of it, and, according to other evidence on his behalf, until twenty-one feet from it. When he, seated in the buggy, drawn by a double team, was at that distance, the horses necessarily were much closer to (probably within ten feet of) the rails, and moving forward at a brisk walk. He turned toward the west looking for a train, and, seeing none, turned eastward and discovered the engine close upon him. His horses were then nearly [286]*286across the rails so he struck them at once to hurry them forward, but the buggy did not clear the track in time to escape disaster, and the injuries followed as stated. Here plaintiff seems to have been looking and listening for danger at various points along the road. He could not look both ways at the same time when he reached the first point of clear observation. It so happened that he looked west, first, on reaching it, instead of east, and that when he looked east, in passing over the short space to the track, it was too late to be of any avail; but his action in the premises was not such as to indicate such recklessness or want of caution as would constitute negligence as a matter of law. We are not prepared to say that his conduct was different from what the man of average prudence would do in the same circumstances.
He was under no legal obligation to shape his action on the theory that the defendant would disregard the-plain requirements of law respecting a signal of its coming train. He was confronted with peculiar conditions, shown by the topography of the crossing, and was bound to use such care as would ordinarily be-exercised by an intelligent man amid such surroundings. Whether he did so or not, was a question of fact on the case here made. Johnson v. Railroad (1883), 77 Mo. 546 ; Kellogg v. Railroad (1879), 79 N. Y. 72; Greany v. Railroad (1886), 101 N. Y. 419; Davis v. New York Cent., etc., Co. (1872), 47 N. Y. 400 ; Randall v. Railroad (1882), 132 Mass. 269 ; Tyler v. Railroad (1884), 137 Mass. 238. The trial court did not err in refusing to give an instruction that plaintiff could not recover.
II. By one of the instructions (number 1) given for plaintiff, against defendant’s exception, the court declared the law to be that if the jury found the engine-bell was not duly rung (as required by the statute), “and that the steam-whistle attached to said engine was not sounded eighty rods from said crossing,” etc., then [287]*287(with the other necessary facts) there should be a verdict for plaintiff.
It is claimed that this is erroneous as requiring the whistle to be sounded exactly eighty rods from the crossing whereas the statute reads, “at least eighty rods from the place where the railroad shall cross,” etc. Sess. Acts, 1881, p. 79.
The giving of warning by either bell or whistle will answer the demand of the law. Van Note v. Railroad ( 1879), 70 Mo. 641. If there was evidence before us of a compliance with the statute, in regard to whistling, we should be obliged to consider the point above noted. But there is not. Defendant’s locomotive engineer testified that he sounded the whistle “about eighty rods east of the crossing,” and others on the same side corroborated him ; but neither he nor any witness for defendant asserted that the whistle had been thereafter sounded at intervals until reaching the crossing. On that point there is a complete blank in the evidence.
On plaintiff’s part there was considerable testimony that no signal of bell or whistle was given. On the other hand there is abundant evidence for defendant, showing the proper ringing of the bell. On that point the instruction mentioned is not challenged. But defendant’s own testimony has no tendency to show that the whistle was sounded as prescribed, and, therefore, the instruction, in the particular mentioned, cannot furnish a ground for reversal, having regard to the statutes which direct us to disregard irregularities in the proceedings “which shall not affect the substantial rights of the adverse party” (R. S. 1889, sec. 2100), and not to reverse a judgment for any error unless we believe it is one “materially affecting the merits of the action.” R. S. 1889, sec. 2303.
III. Defendant complains of the refusal of the trial court to instruct as asked in the refused requests, numbered 4 and 8 (copied in the statement). These declarations are framed with the evident purpose of [288]*288indicating what acts of plaintiff in the circumstances would amount to legal negligence. The court in other instructions told the jury plainly that it was plaintiff’s duty to use ordinary care in crossing the railroad (instruction, numbered 1), and further (in substance, see instruction B) that he was bound to use his eyes and ears to look and listen for an approaching train, and that if he failed to do so, and the injury thereby resulted, the verdict should be for defendant. This was quite as favorable to defendant as established principles of law justified.
The true legal rule is that one approaching a railway crossing must exercise reasonable and ordinary prudence to avoid the danger necessarily to be apprehended there. It may often be that a failure to look and listen for a coming train will be such obvious negligence as to warrant a court in so declaring, but circumstances may exist in which the failure to look and listen cannot justly be so regarded. No procrustean standard of negligence, predicated on a failure to look and listen, exists.
For example, the refused instruction, numbered 4, seeks to declare it conclusive negligence, if plaintiff, in passing over the ninety feet between his last stop and the track, neglected to look and listen for a train, whereas his evidence was that “you cannot see a train from the point where I last stopped, nor until you get near the track.”
The refused instruction, numbered 8, is faulty in several particulars, chiefly in calling for findings, which there was no evidence to support, of plaintiff’s mental impressions in approaching the crossing. It need not be further discussed.
IV. The modification made in defendant’s request, numbered 12¾ (given by the court as instruction B), consisted merely in the elimination of the word “ constantly” as applied to plaintiff’s duty to use his eyes and ears in approaching the track. Plaintiff [289]*289was legally bound to exercise ordinary care in the premises, as we have already said, and if to “constantly use his eyes and ears,” as suggested in the instruction refused, imposed a higher duty than that upon him (as we think it was intended to do), it can not be approved. Terre Haute & I. Ry. Co. v. Voelker (1889), 129 Ill. 540, followed in Chicago M. & St. P. Ry. Co. v. Wilson (1890), 133 Ill. 55.
The foregoing remarks dispose of all the assignments of error which appear to merit notice.
The judgment is affirmed;
Sherwood, C. J., dissents ; Black and Brace, JJ., concur.