REYNOLDS, P. J.
This is the second appearance of this case before us on appeal from the action of the trial court in sustaining a motion for new trial and setting aside the verdict which had been rendered by the jury, in each case a verdict for $2000 in favor of plaintiff. On the former appeal we held that the action of the trial court in granting a new trial should be affirmed, but we remanded the cause for further proceedings on, the ground that if a recovery is to be had at all “it must be sustained only on the last chance [536]*536doctrine, for the f-anlt of the engineer in omitting to exercise ordinary care toward averting the injury after he either saw or might have seen the decedent about to become in peril — that is, coming toward the track in such a manner as to suggest the danger of a collision and to call for precautionary measures on his part.” [Maginnis v. Missouri Pacific Ry. Co., 182 Mo. App. 694, l. c. 718, 165 S. W. 849.] The issues in this last are as in the former trial and the evidence in this last trial while it followed very closely that in the former, did so with some marked differences which we will notice.
The two witnesses as to the main facts connected with the movements of the decedent at the time of the accident, who testified at the former trial, again testified at this second trial, namely, Mr. Evers, the proprietor- of the store referred to in the opinion, which was located on the west side of the Berry road and to the south of the railroad crossing, and the engineer of the train, Mr. Hayes, the latter the only eyewitness' to the accident, who at this last trial was called and put upon the stand by plaintiff.
There was some evidence for the defendant, introduced at this second trial, after it had interposed a demurrer to the evidence, which does not appear to have been introduced at the former trial. It was given by a gentleman who was a passenger on the train. This witness on this second trial testified that on the morning of the accident he was sitting in the smoking car when he heard the whistle blowing, first, apparently, the ordinary crossing whistle, then in a little while short and quick and many blasts. He put his head out of the window, thinking that the train was about to run over something and saw a man going, as it appeared to him, at a right angle, to cross the, track ahead of the train. It seemed to him that the man was quite a little bit in front of the engine but the witness could not tell whether he was in danger or not and it looked to him like he was trying to cross at right angles and [537]*537was either running or walking very fast. There were something likfe four cars between the witness and the engine, and the witness was looking alongside the train as it ran, and the man disappeared from his view, whereupon the witness ran across to the other side of the car to see if the man had got away. When he got there he saw nothing of the man. The train stopped, backed to the station and he got off and helped put the man whom he found lying there, on a stretcher.
On cross-examination this witnéss testified that the quick, short whistle he heard was what he considered, not being a railroad man or an expert, an alarm whistle, of such a character as to indicate to him that there was something on the track. That was what attracted his attention and caused him to look out; could not tell where the train was when he first heard the whistle; had heard the whistle before he looked out; may have heard it eighty rods before he got to the crossing, but as he was a stranger, not acquainted with the locality, did not know that the alarm whistle, as he called it, was what caused him to look out, the whistle preceding that not having attracted his attention, as we understand his testimony. This testimony supports the conclusion reached by our court that there was nothing-lacking in the way of signals or of actionable negligence on the part of the engineer, in so far as that feature of the case is concerned, and in a way supports the testimony of the engineer.
Eeferring to the testimony of the witness Evers, proprietor of the store, as set out very fully in the former opinion, it is to be noted that he testified that he had traced the course of the decedent by footprints, identifying these footprints as those of the decedent by cracks in. the soles of his shoes. That is, he found cracks in the footprints corresponding to those in the shoes. So he testified at this last trial, testifying that after the train had left, he, with several others, went out and followed these footprints. It had been rain[538]*538ing the night before or early that morning and the crossing was muddy. The mud from the road had got upon the crossing. There were four planks to each track, that is two planks on each side of the track, at 'this crossing. Evers and the others followed these footprints “on those planks to the last plank on the— this is, the last inside plank on this crossing.” These planks were about sixteen feet long- — two to the south,, two to the north of the rails, said this witness. In this he is in error, for there were also two between the rails. This last plank was near the north rail. They saw three or more of these tracks, that is, six footprints in all, three pairs of them, as we understand, showing the imprint of the broken sole of the shoe. The beginning of these tracks, he testified, was “right at the driveway or where the teams had carried the mud along the cinders.” Asked at what end of the crossing, he answered, “ The west end of the planking. Q. Thebeginning of the tracks was at the west end of the planking? A. Yes, sir.” Asked to describe this more fully, he did it with photographs before him, by pointing to them on the photographs. But it is impossible for us to locate the tracks by this, as the point is not marked on any of the photographs produced before us. This witness stated, pointing to the photograph: “We first noticed his tracks in here some place, and then they came up along over the rail. . . . My recollection is that the first steps that we could follow were just about at this point on the crossing. Q. Which point is that? A. That is the west point, about even with the west point of the planking, and he (decedent) apparently followed the rail over to the north side on the east side of the roadway. Q. It wasn’t between the rail? A. No, sir — that is my recollection. The last step was on this plank next to this rail,” witness indicating the north rail near the end of the plank, and as he repeated near the end of the plank. This footprint was on the last plank. It is clear that when this [539]*539witness speaks of the “plank walk,” except when he refers to one north of the tracks, that he is referring to the hoards at the crossing of the dirt road over the tracks.
On cross-examination, this witness testified that he saw ahont three prints of each foot. Asked if at the time when he looked ont there in the mud for these tracks, he had looked anywhere else for tracks except alongside the rail and between the rails, the witness answered: “A. We couldn’t follow him on the plank walk or in the cinders distinct,” repeating that they could not follow him on all of the plank walk, only where the cinders had mud on them. This examination was made after the train had proceeded to St. Louis and after several people had crossed back and forth over the boards and crossing. No comparison of the footprints with the shoes of decedent was made other than that Evers testified that he saw that the soles of the shoes had a crack in them and that he found a crack in these tracks or imprints.
As the testimony of the engineer is not given in full in the opinion formerly rendered, we think it well to set it out at some length. Called and testifying on behalf of plaintiff: at this last trial, the engineer, Hayes, stated that he was the engineer in charge of the engine which struck and killed Mr. Maginnis on the date named. He had taken charge of the train as engineer at Jefferson City and was running it into St. Louis. At the time of the accident the train was going at about forty or fifty miles an hour, as he guessed. (The train running from west to east, the Evers store south of the railroad tracks and on the west side of the Berry road, one directly in front of the store would not be within the view of the engineer as he drove east until he had cleared the store.) When he first saw Mr. Maginnis as his train approached Berry road crossing that morning, Mr. Maginnis was just emerging from behind Mr. Evers’ store; had just come out from behind that store. [540]*540Asked how close to the end.of the store he thought. Mr. Maginnis was, Hayes answered that it was hard to tell; that he should judge though, three or four feet; from three to four feet possibly from Mr. Evers’ place; that is from the northeast end of Evers ’ store. Witness had blown his whistle at the eighty-rod post, which is the post eighty rods west of the crossing, blowing the crossing signal, two long and two short blasts of the whistle. That is the crossing signal and differs from the alarm signal in that the alarm signal is a short blast of the whistle, as fast as you can blow it. The train was composed of six cars and after strik-ing Mr. Maginnis it ran some six or seven hundred feet. Asked when he had applied his air brake before striking Mr. Maginnis, witness answered that he should judge that it was any where from forty to fifty feet west of the crossing, possibly more. Asked if when he saw Maginnis was going on the track he had thrown off steam, the witness answered that his steam was thrown off long before that; that there is a down grade there and they were “drifting.” When he blew this second or alarm whistle witness testified that to the best of his recollection, he was possibly sixty feet or seventy-five feet away from the crossing. This occurred, said the witness, three years ago and it was hard to answer a question of that kind as to distances accurately. Continuing his testimony the witness stated that he started to blow the crossing whistle after he had first observed Maginnis, with a double warning and as soon as he saw him divert his course and go across the track he changed it into an alarm whistle and applied the brakes. Asked how far he thought his engine was from the crossing boards of the Berry road when he sounded the crossing signal, which preceded the alarm, he repeated that he should judge he was from sixty to seventy-five feet. On the remark of the court that he did not understand this answer, counsel for plaintiff stated he would bring that fact out again. He then said to [541]*541tlie witness that as he (counsel) understood the witness, he whistled for the crossing as his engine was about to pass the whistling post eighty rods west of the crossing board; that the next crossing signal he gave after that was the one which preceded the alarm whistle. To which the witness said, “Yes,” that he started to give a crossing signal; that this was when his engine was sixty or seventy feet from the crossing;' that was when Maginnis had first emerged from behind the store, “apparently going across the track, that is the road crossing the track.” Asked if as soon as he saw Maginnis running he had given him a signal, the witness answered, “After I thought there might be a possibility of danger, I gave him a double warning. I thought then he diverted his course straight across.” Asked what course he did pursue until he was struck, witness answered that Mr. Maginnis “left the sidewalk near Mr. Evers’ store and started diagonally across the roadway, that is, the wagon roadway, for the depot, diagonally across.” He appeared to be running toward the station there. (This station is south of the tracks and some distance east of the Berry road and diagonally east, northeast of the northeast corner of the Evers ’ store, judging from the plat before us about eighty-five feet east, northeast, of that store, the station standing back about twenty feet from the south track.) The witness testified that after taking possibly one or two steps past Evers’ store, Maginnis left the sidewalk, starting diagonally across toward the station. Shown the photograph which was in evidence and saying that he could not explain it by that, witness said that he could explain it so that anybody who had been on the premises could understand it. “As near as I can tell (said the witness) he (Maginnis) entered what would be this cinder path here in front, about even with this crossing plank on the north side. It might have been a little bit east.” Witness then illustrated his testimony by pointing to a plat which was [542]*542before tbe jury but as tbe points be pointed to are not on tbe plat before ns, it is impossible to locate this. "With tbe plat before him the witness testified that as near as he could tell, Maginnis stepped over about directly even with the board walk, evidently meaning the board walk to the north of the railroad to which he had just pointedly referred, and not the board walk in front of Evers’ store; that the cinder walk comes along up to the crossing and he went from a place indicated by witness on the plat from the corner of the store diagonally toward the station, as near as he could tell even with that walk, “ and then diverted his course directly north across the tracks.” Asked how many miles an hour he would reduce the speed of his train to while it was running 300 feet after the application of the air, witness answered, “I don’t think any human being would answer that. ’ ’ He had not only applied the air brakes on this occasion but had used sand, the effect of which latter is generally to help check speed, although occasionally the engine will slide on sand but not often. Asked if Maginnis had shown any indication to him that he knew the train was coming, he answered, ‘ ‘ The indication was to me that he was trying to make the depot for to catch a train, a weekly suburban train that stopped there on week days, and we were on their time. That is the first impulse I had when I saw him running toward the depot. That is the only indication I had that he believed it was a suburban train, that was my impression.”' "Witness did not see him turn his head at any time and look at the train. “In fact, I didn’t look close for that, because I was sure he was going to catch this train.” Asked if he had done anything that indicated to witness that he knew the train was that close to him, the witness answered that not as far as he could see; had not seen him at the very moment he was struck. The engine had obstructed his view after Maginnis had passed on the track, he being struck on the left side of the track and [543]*543the engineer being on the right side of his engine. Ashed by counsel for plaintiff if there are some conditions under which his train, with safety to passengers and under the conditions which existed at that crossing at that time, the track in good condition, brakes in good working order, with the speed of the train at forty-five miles an hour, it might be reduced as low as twenty miles in 300 feet, the witness answered that that “would be mighty short;” that he supposed it could be done under certain conditions. He was then asked by counsel for plaintiff this question: “You did everything in your power to avert this man’s death?” To which he answered, “After I saw him in danger, yes, sir, nothing more could be done. ’ ’ On cross-examination by counsel for defendant, witness testified that there was a suburban train that usually stopped at Glendale about the same hour in the morning that this train reached there; that, however, is on week days, but as this was on Sunday that suburban train was not running.
Cross-examining him on part of defendant, counsel asked witness this: “Now, when you saw Mr. Maginnis coming out from the end of the board walk, you say he started as though he were going to the station?” "Witness answered, “When he left the board walk; he wasn’t to the end of the board walk.” Counsel repeated, “He came to the end of the board walk and he was coming north until he came to the end of the board walk?” To which witness answered, “He never came to the end of the board walk.” (Here it is to be noted that it is stated in our former opinion (l. c. 710), that it appears that Maginnis followed the sidewalk to the end of it, twenty-one feet south of the south rail and then turned to the northeast. This, it will be seen is flatly contradicted by the engineer at this trial, a very important difference.) When he was coming down toward the track he was coming north; when he went off of the board walk and started to[544]*544ward the station he was going diagonally across the Berry road and through the cinders toward the station. Asked if after Maginnis left the board walk going toward the station he was parallel with the east track, witness said that he would hardly put it •that way, that if counsel meant by parallel that Maginnis was going right directly along the side of the track, he was not. Asked if while Maginnis was headed toward the station he had his back to the witness, witness answered, “Well, it couldn’t quite be his back. It would be more his back than side,” but as far as witness could see, the decedent had never looked toward the train but was headed toward the station. Asked if the deceased was in a position of safety so long as he continued toward the station and until he diverted out, witness answered'“yes, sir.” Asked if he was in a position of perfect safety, so far as that train was concerned until he suddenly diverted his course and started across the track, asked if that was what he meant, witness said, “Yes.” These questions and answers then followed and closed the cross-examination of this witness, the engineer, and refer of course to the decedent: “Q. After he diverted his course and started across the track, was there anything on earth that could have been done to save him? A. Nothing; only for him to stop. Q. He could then have stopped and avoided the accident? A. Yes, sir, he could still have stopped. Q. He could still have stopped and avoided the accident? A. Yes, sir. Q. Could you have done anything to avoid it? A.. No, sir; nothing more than I done. ’ ’
On redirect examination by counsel for plaintiff the witness was asked what opportunity he had to give a crossing signal after Mr. Maginnis made this sudden turn toward the track and before he got on the track, witness answered, “I never made a crossing-signal when he made — I started to make a crossing-signal only once before he diverted his course directly [545]*545across the track. While he was crossing the road crossing and he was getting near this cinder path, then I started as a double precaution to whistle the ioad crossing, when he darted across, and then I changed it to alarm and applied the emergency brake. ’ ’ Witness testified that he had given the regular signal for crossings at the whistling post about eighty rods away; that signal was two long and two short whistles. His fireman was in the cab with him and ringing the bell; had continued ringing the bell until after the accident occurred and until after they had passed over the crossing.
It is contended that the testimony of Mr. Evers, the storekeeper, and of Mr. Hayes, the engineer, is contradictory and irreconcilable and that this made the case turn on the question of fact and hence subject to the action of the jury. We are unable to concur in this view of the testimony. In the first place Mr. Evers does not testify that the decedent continued along the plank walk in front of his store to the end of that walk. Mr. Evers does not pretend to say at what point any footprints showed that the decedent left that walk nor the direction which he had taken after he left that sidewalk. The testimony of the engineer is positive that he did not go to the end of that w;alk but that after taking two or three steps from behind Evers’ store the decedent had started' in a diagonal direction toward the station which is on the same side of the railroad tracks as is Evers’ store, east of that store and south of the tracks. Evers testifies that he found these tracks commencing toward the west end of the sixteen-foot planks at the crossing. He found three of them going toward the northeast corner of the crossing and it was at the northeast corner of these planks or crossing that Maginnis was hit and killed. When he was taking these two or three steps on these planks inside of the rails, it was after he had changed his course and as [546]*546the engineer said, attempted to go directly across the tracks. What course he took on the tracks is not in evidence, so far as concerns the testimony of the engineer. He did not attempt to say, as he could not see Maginnis on the tracks for he would then be directly in front of the engine and out of the immediate line of vision of the engineer. If Mr. Maginnis left the plank walk, which is in front of the Evers store, at the end of that walk, as is stated in our former opinion that he did, then his course toward the depot would hardly be called diagonal, for the end of that walk is almost directly opposite the center of the depot, which by the plat appears to be about twenty-five feet wide. But if he left that sidewalk, as the engineer positively testifies that he did, only two or three feet north of the Evers store, and took a few steps toward the depot, he would be pursuing a diagonal course toward the depot. He then diverted his course, as the engineer testifies, directly across the tracks and after he was about even with the west end of the crossing planks, and so the engineer says he did. That would have brought him to the point on the crossing boards where Evers says he saw the first footprint. In this view of the evidence, that of Evers and Hayes is not conflicting; certainly not so conflicting when we consider that the engineer is testifying to the facts as he saw them, as to warrant the jury in disregarding this positive testimony of the engineer and place its verdict on tbe evidence of Evers as to the footprints.
As here applicable we may well quote what our Supreme Court has said in Rollison v. Wabash R. R. Co., 252 Mo. 525, l. c. 539, 160 S. W. 994: “Was there any substantial evidence from other witnesses that the sole eyewitness on the ground, who saw all and whose act is to be judged, was mistaken in fact when he said he acted as quickly as he could after he saw decedent arise and start to his death?” We think there was not.
[547]*547The learned counsel for appellant claims that we are concluded by our former opinion in this case on the question of there being evidence to take the case to the jury on the last clear chance or humanitarian doctrine; that what is there said on that is the law of this case. The learned trial judge had that opinion before him and did not think it conclusive on this point. Nor do we. Even if that opinion goes as far as counsel contended, our Supreme Court has laid down a rule in Bowles, Guardian, etc. v. Troll, Pub. Admr., 262 Mo. 377, 171 S. W. 326, which must govern us as here applicable. There it is said, referring to the right of an appellate court — as we are- — to correct its own errors, if any are made — in the same case, ‘ ‘ The power to correct our own is self-evidently an integral part and parcel of the power to correct the errors of other courts, and the duty to correct them in the same case at the first opportunity is always present where a ruling is sharply wrong and unsettles correct practice, or the law.” [See, also, Keele v. Atchison, Topeka & Santa Fe Ry. Co., 258 Mo. 62, 167 S. W. 433.] Without holding that our former opinion in this case is error, on this point of there being sufficient evidence then present to take the case to the jury on the last clear chance or humantarian doctrine, we here hold, that in the case as now before us, and on the evidence now present, evidence drawn out and presented by the appellant, plaintiff below, herself, there is no substantial evidence in it to take the ease to the jury on the last clear chance or humanitarian rules.
On all the other propositions involved, the evidence here is practically as before and our conclusion on it is as before; that is, that plaintiff made out no case.
In short, we do not consider that the positive, affirmative testimony of the engineer, the only eyewitness to the accident, can be said to be contradicted by or inconsistent with that of Mr. Evers as to foot[548]*548prints which are, inferentially only, those of the decedent.
This whole accident was one of seconds: a very few seconds, at most.
In Underwood v. St. Louis, I. Mt. & S. Ry. Co., 182 Mo. App. 252, 168 S. W. 803, commenting on the difference in the testimony as to' the position of the horse and buggy, between that of the engineer and witnesses for plaintiff, the Springfield Court of Appeals has said (l. c. 273): “But why speculate as to one or two seconds in time and five to ten feet in the distance of the horse from the track? Liability cannot be predicated on so narrow a margin. The burden is on the plaintiff to prove the facts which bring the case within the rule now invoked. Engineers are human beings and we cannot exact of them to act instantly and in the most intelligent way in cases of emergency. Liability does not arise from mere errors of judgment or failure to act instantly in such cases. Every one knows that the'very necessity for instant action delays the same and emergencies demanding quick and intelligent action breed confusion and delay. An act which ordinarily would be performed in a second, if limited to that in order to save life often paralyzes the efforts- to do so. The engineer’s duties under such circumstances are complex, he must think and that takes time.”
So in McGee v. Wabash R. R. Co., 214 Mo. 530, 114 S. W. 33, referring to the train running 400 feet in five and one-half seconds, and the duty of the fireman, as it was claimed-, to have seen the peril of decedent and to have warned the engineer in time to have avoided the accident, our Supreme Court has said (l. c. 543): “How are those mere pulse beats to be distributed between the engineer and fireman in meting out praise and blame and arriving at actionable negligence? . . . Courts being eminently practical tribunals in getting at practical and just results in [549]*549the affairs of men, will it do to chop logic and predicate actionable negligence on subtle reasoning involving metaphysical features and covering an interval of half a second or one or two seconds of time? We think not. ’ ’
As has been truly observed in these and many cases, engineers are hut human beings. They, as well as the wayfarer upon the tracks, are entitled to he judged by the laws governing humqn actions. When as here appears, this unfortunate engineer of this train, did all that was possible to avoid the accident when he saw its imminence, shall we hold him responsible — ■ morally, if not pecuniarily — for the death of the decedent? He is human, and we can well believe that the vision of this fatality long lingered with him as a haunting memory, for no one can but deeply feel a death which, however unwittingly, fell in at his hands. Hence we refer to this engineer as unfortunate. A locomotive engineer is charged with great responsibility, not only for the safety of property, hut what is of far greater moment, the safety in life and limb of a multitude of human beings. His calling requires constant watchfulness, extraordinary care and these the law requires of him. While in the course of his duty he is often required to act on the instant, the law does not hold him guilty, if in that instant he errs. He is only required to do the very best 'he can under the surroundings as he sees them.
Shall we judge his act by that act as it looks to us in our calm review of its attendant circumstances, and looking hack at it, say that it was a negligent act because we can now say, in the light of those circumstances as they appear to us, it could have been avoided? That is not the law. The act of the engineer is to he judged, not from the circumstances as the jury sees them,hut from how they must have appeared to him at the time — he looking at them as a reasonable man. It is true that if damages are here allowed, they will [550]*550fall upon the defendant railroad corporation, but the effect of such a finding will be to throw the blame and guilt of taking a human life on the engineer, in effect to hold that under the circumstances, as he saw them, he could have saved that life. "We do not think that the evidence here warrants any such result.
As has been said by our Supreme Court in McGee v. Wabash Railroad Co., supra, (l. c. 543) “to get to the jury, plaintiffs must get their case out of the fog of conjecture and plant it on a basis of fact.” This the plaintiff failed to do on the issue now on hand. As against the positive testimony of the engineer, who was the plaintiff’s own witness, and barring the passenger on the train, the only eyewitness to the immediate event, we have nothing but conjectures raised by the testimony of Mr. Evers. A verdict cannot rest on this mere conjecture.
Our conclusion is that this case falls within what has been determined by our Supreme Court in Guyer v. Missouri Pacific Ry. Co., 174 Mo. 344, 73 S. W. 584; Mockowik v. Kansas City, St. J. & Council Bluffs R. R. Co., 196 Mo. 550, 94 S. W. 256; King v. Wabash R. R. Co., 211 Mo. 1, 109 S. W. 671; Burge v. Wabash R. R. Co., 244 Mo. 76, 148 S. W. 925, and cases hereinbefore cited, in that it clearly appears that the decedent moved from a place of safety into a place of danger so quickly that the engineer, not seeing him change from that place of safety into one of danger until too late to avoid the accident, neither he nor this defendant can be held liable.
The action of the trial court in overruling the demurrer to the evidence was wrong, "and its action in setting aside the verdict and granting a new trial for that error is correct and is affirmed. The cause is accordingly remanded to that court for such further proceedings as are in accordance with this opinion. Allen, J., concurs. Nortoni, J., dissents and deeming it in conflict with the opinion of the Supreme Court in [551]*551Buesching v. The St. Louis Gaslight Co., 73 Mo. 219; Rollison v. Wabash R. R. Co., 252 Mo. 525, 160 S. W. 994, and Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720, 94 S. W. 967, asks that the case be certified to the Supreme Court, which is accordingly done.