BURGESS, P. J.
This is an action by plaintiff, the widow of E. B. Porter, deceased, against the defendant company, to recover the sum of five thousand dollars damages, under the provisions of section 2864, Revised Statutes 1899; known as the second section of the Damage Act. The petition upon which the case was tried was the second amended petition, in two counts; [90]*90but as the recovery was upon the first count, the second count will not be further noticed. Said first count alleges:
‘ ‘ That the death of the said E. B. Porter was due to the gross, wanton and willful negligence of the defendant and its agents and employees, its engineer and fireman in charge of said train, as follows:
“1st. That the defendant through its agents and employees had knowledge of the dangerous conditions about, on and surrounding said crossing and approach to the same, hereinbefore stated, at the place where the said E. B. Porter was killed, and that said crossing, on account of the conditions prevailing, was dangerous, and that a team and driver were liable to be caught on the said crossing on account of said prevailing conditions ; and in failing to have its train slowed down and under control approaching said crossing, and in running the same up to said crossing at a high rate of speed.
“2nd. In failing to sound the whistle or ring the bell of said engine as the said engine approached said crossing eighty rods before reaching said crossing, and in failing to continue to sound said whistle at intervals or to keep the bell ringing until said crossing was passed, as provided by law.
“3rd. In sounding the locomotive whistle continuously on the immediate approach of said crossing, thereby frightening the team of horses driven by the decedent E. B. Porter, and preventing them from crossing to a point of safety.
“4th. In the failure of the defendant through its agents and employees to observe the perilous position of the decedent E. B. Porter with the team of horses on the crossing at which he was killed, in time to have stopped the train or to have prevented the collision and its results as herein described.
“5th. In the failure of the defendant and its employees, the engineer and fireman in charge of said [91]*91train, to stop the same or make an effort to do so, after discovering the peril of E. B. Porter, decedent, with the team on the crossing, or to avert the collision with the said decedent and the said team.
“That hy reason of the killing of the said E. B. Porter the plaintiff has been damaged in the snm of five thousand dollars, no part of which has been paid or satisfied in any way.
“Wherefore, plaintiff asks judgment against the-defendant for the sum of five thousand dollars and for her costs.”
By answer, defendant denied all the allegations in both counts and pleaded contributory negligence on the part of the deceased. Plaintiff replied, denying all new matter in said answer contained.
Upon a trial before the court and jury, plaintiff recovered a verdict upon said first count of the petition for $5,000, upon which judgment was rendered. Within four days after verdict the defendant filed motion for new trial, which was overruled, and defendant appealed.
The material facts, as disclosed by the record, are substantially as follows:
The deceased was killed by one of defendant’s passenger trains about six o’clock on the evening of March 6,1902, while attempting to cross the track of said railway while on his way with a wagon and team from Lexington to Wellington in Lafayette county. He crossed the track at the point of the accident twice almost every day, and knew the time the train was due there. It was open daylight at the time of the accident. The only witnesses to the accident were the fireman and engineer of the train, which was running at the time at a speed of about thirty miles an hour. The train was westbound from Lexington to Wellington, and on time ' when it left Lexington, about five or six miles east of the place of the accident. At the time of the accident deceased was sitting in a common farm wagon drawn [92]*92by two horses. He had been engaged for some time in hauling flour from Wellington to Lexington for a milling company, and was familiar with this railway crossing, its situation and surroundings. The usual warning signal of danger was in plain view at the crossing. Back from the scene of the accident for at least a quarter of a mile northeastward, which was the direction from which deceased was traveling and the direction from which the train that struck him approached, the county road and the railway ran practically parallel, and for the greater part of the way the county road was in proximity to the right of way. The elevation of the track was three or four feet above the county road, and the evidence showed that a person traveling westward toward the crossing where the accident occurred could, on crossing the county bridge over the Little Sni, one hundred and twenty feet from the railway crossing, see a train half a mile down the track, but that he loses sight of it as it approaches on account of timber until the train gets within one hundred feet of the bridge across Cow Creek, which bridge across Cow creek is about seven hundred feet from the place of the accident; that a traveler in a wagon, when arrived at the crossing, could see up the track six or seven hundred feet.
There was at the time of the accident, and for several months or a year prior thereto, a hole, two or three feet deep, between the right of way fence and the crossing, so that a land of temporary wagon way had been formed by teams passing around the hole.
Plaintiff introduced evidence showing and explaining the elevation of the bridges, the railroad and wagon road, the curve of the railroad approaching the point where the accident occurred; the trees, vines and underbrush bordering the railroad track and wagon road; also as to the vision of the approaching train from the wagon bridge over the Little Sni and from the crossing.
[93]*93The evidence upon the part of the defendant showed affirmatively that the whistle on the train was sounded near the whistling post, 1320 feet northeast of the crossing, and that the whistle' was sounded a number of times again as soon as the deceased was discovered approaching the crossing. Plaintiff introduced a number of witnesses, some of whom were passengers on the train, at the time, who testified that they did not-hear the bell ring or the whistle sound.
The court, at the instance of the plaintiff, instructed the jury, with respect- to the first allegation of negligence in the petition, as follows:
“The jury are instructed that if they believe from the evidence 'that the crossing in controversy was of such a character as to enhance the danger of collision and accidents at said crossing, it was the duty of the servants, agents and employees of defendant in managing or running said locomotive and train of cars to exercise a degree of care in the operation of said train commensurate with the danger of collision reasonably to be apprehended at that location.
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BURGESS, P. J.
This is an action by plaintiff, the widow of E. B. Porter, deceased, against the defendant company, to recover the sum of five thousand dollars damages, under the provisions of section 2864, Revised Statutes 1899; known as the second section of the Damage Act. The petition upon which the case was tried was the second amended petition, in two counts; [90]*90but as the recovery was upon the first count, the second count will not be further noticed. Said first count alleges:
‘ ‘ That the death of the said E. B. Porter was due to the gross, wanton and willful negligence of the defendant and its agents and employees, its engineer and fireman in charge of said train, as follows:
“1st. That the defendant through its agents and employees had knowledge of the dangerous conditions about, on and surrounding said crossing and approach to the same, hereinbefore stated, at the place where the said E. B. Porter was killed, and that said crossing, on account of the conditions prevailing, was dangerous, and that a team and driver were liable to be caught on the said crossing on account of said prevailing conditions ; and in failing to have its train slowed down and under control approaching said crossing, and in running the same up to said crossing at a high rate of speed.
“2nd. In failing to sound the whistle or ring the bell of said engine as the said engine approached said crossing eighty rods before reaching said crossing, and in failing to continue to sound said whistle at intervals or to keep the bell ringing until said crossing was passed, as provided by law.
“3rd. In sounding the locomotive whistle continuously on the immediate approach of said crossing, thereby frightening the team of horses driven by the decedent E. B. Porter, and preventing them from crossing to a point of safety.
“4th. In the failure of the defendant through its agents and employees to observe the perilous position of the decedent E. B. Porter with the team of horses on the crossing at which he was killed, in time to have stopped the train or to have prevented the collision and its results as herein described.
“5th. In the failure of the defendant and its employees, the engineer and fireman in charge of said [91]*91train, to stop the same or make an effort to do so, after discovering the peril of E. B. Porter, decedent, with the team on the crossing, or to avert the collision with the said decedent and the said team.
“That hy reason of the killing of the said E. B. Porter the plaintiff has been damaged in the snm of five thousand dollars, no part of which has been paid or satisfied in any way.
“Wherefore, plaintiff asks judgment against the-defendant for the sum of five thousand dollars and for her costs.”
By answer, defendant denied all the allegations in both counts and pleaded contributory negligence on the part of the deceased. Plaintiff replied, denying all new matter in said answer contained.
Upon a trial before the court and jury, plaintiff recovered a verdict upon said first count of the petition for $5,000, upon which judgment was rendered. Within four days after verdict the defendant filed motion for new trial, which was overruled, and defendant appealed.
The material facts, as disclosed by the record, are substantially as follows:
The deceased was killed by one of defendant’s passenger trains about six o’clock on the evening of March 6,1902, while attempting to cross the track of said railway while on his way with a wagon and team from Lexington to Wellington in Lafayette county. He crossed the track at the point of the accident twice almost every day, and knew the time the train was due there. It was open daylight at the time of the accident. The only witnesses to the accident were the fireman and engineer of the train, which was running at the time at a speed of about thirty miles an hour. The train was westbound from Lexington to Wellington, and on time ' when it left Lexington, about five or six miles east of the place of the accident. At the time of the accident deceased was sitting in a common farm wagon drawn [92]*92by two horses. He had been engaged for some time in hauling flour from Wellington to Lexington for a milling company, and was familiar with this railway crossing, its situation and surroundings. The usual warning signal of danger was in plain view at the crossing. Back from the scene of the accident for at least a quarter of a mile northeastward, which was the direction from which deceased was traveling and the direction from which the train that struck him approached, the county road and the railway ran practically parallel, and for the greater part of the way the county road was in proximity to the right of way. The elevation of the track was three or four feet above the county road, and the evidence showed that a person traveling westward toward the crossing where the accident occurred could, on crossing the county bridge over the Little Sni, one hundred and twenty feet from the railway crossing, see a train half a mile down the track, but that he loses sight of it as it approaches on account of timber until the train gets within one hundred feet of the bridge across Cow Creek, which bridge across Cow creek is about seven hundred feet from the place of the accident; that a traveler in a wagon, when arrived at the crossing, could see up the track six or seven hundred feet.
There was at the time of the accident, and for several months or a year prior thereto, a hole, two or three feet deep, between the right of way fence and the crossing, so that a land of temporary wagon way had been formed by teams passing around the hole.
Plaintiff introduced evidence showing and explaining the elevation of the bridges, the railroad and wagon road, the curve of the railroad approaching the point where the accident occurred; the trees, vines and underbrush bordering the railroad track and wagon road; also as to the vision of the approaching train from the wagon bridge over the Little Sni and from the crossing.
[93]*93The evidence upon the part of the defendant showed affirmatively that the whistle on the train was sounded near the whistling post, 1320 feet northeast of the crossing, and that the whistle' was sounded a number of times again as soon as the deceased was discovered approaching the crossing. Plaintiff introduced a number of witnesses, some of whom were passengers on the train, at the time, who testified that they did not-hear the bell ring or the whistle sound.
The court, at the instance of the plaintiff, instructed the jury, with respect- to the first allegation of negligence in the petition, as follows:
“The jury are instructed that if they believe from the evidence 'that the crossing in controversy was of such a character as to enhance the danger of collision and accidents at said crossing, it was the duty of the servants, agents and employees of defendant in managing or running said locomotive and train of cars to exercise a degree of care in the operation of said train commensurate with the danger of collision reasonably to be apprehended at that location.
“And if the jury further believe from the evidénce that the agents, servants and employees of defendant failed to exercise such commensurate degree of care in the movement of such locomotive and train of cars as it approached and passed over said crossing, either by not keeping the bell on such locomotive ringing from a point eighty rods before said train reached said crossing or sounding the whistle on said locomotive at said point eighty rods before reaching said crossing, and continuing to sound the same at intervals until said locomotive passed said crossing such failure in any of said particulars constituted negligence on the part of said defendant.
‘ ‘ And in passing on the question as to whether the agents, servants and employees of the defendant were or were not negligent in running or managing said locomotive and train in any of the particulars aforesaid, [94]*94you should take into consideration all of the facts and circumstances which you may find from the evidence existed at the time when and at the place where the injury occurred. And if you further believe from the evidence that in consequence of such negligence in any one or more of the respects hereinbefore mentioned the said E. B. Porter received the injuries from which he died, you will find your verdict for the plaintiff, unless you further believe from the evidence that the deceased was guilty of negligence which directly contributed to his death. And the burden of proving contributory negligence on the part of E. B. Porter rests on the defendant, and unless the defendant has proven such contributory negligence by a preponderance of the evidence, or unless said contributory negligence is shown by plaintiff’s evidence, you cannot find for the defendant on that ground.”
This instruction is erroneous and vicious. Its first sentence directs the attention of the jury to the dangerous condition of the crossing, and tells them that if the crossing was of such a character as to enhance the danger of collisions and accidents at such crossing, it was the duty of the servants, agents and employees of defendant, in managing or running said locomotive and train of cars, to exercise a degree of care commensurate with the danger of collision reasonably to be apprehended at that location, when in fact the evidence does not show that the existence of the hole or condition of the crossing had anything whatever to do with the collision. The wagon was not loaded, and its passage over the crossing was not impeded, though it might have been slightly delayed by reason of the necessity of driving around the hole. In order to have entitled plaintiff to recover on account of the condition of the crossing, it devolved upon her to show that its condition directly caused or contributed to the death of her husband, which the evidence in no way shows. There was, therefore, nothing upon which to bottom this part [95]*95of the instruction, and the mere fact that the crossing might have been of such a character as to enhance the danger of collisions and accidents is not a sufficient ground of negligence to entitle plaintiff in this case to recover. Besides, this instruction as a whole is in direct conflict with defendant’s instruction No. 4, which is as follows:
“As to said first alleged act of negligence under the first count of plaintiff’s petition, the court instructs the jury that although they may believe from the evidence that the crossing on which plaintiff’s husband was struck was dangerous for the crossing of teams by reason of the' near location of the wagon road and the railroad to each other, and the nearness of the wagon road and the railroad bridges across a stream known as Little Sni, near said crossing, and that the approach thereto was steep and over loose stones, and by reason of a sharp curve in the railroad approaching said bridge from the east and by reason of such railroad running through weeds, vines, underbrush and trees, and that the defendant through its employees knew such surroundings near said crossing, yet in approaching said crossing it was not the duty of the defendant’s employees running the engine and train which struck the plaintiff’s husband, to slow down the speed of its train nor to avoid approaching said crossing at the usual and ordinary rate of speed.
“The only duty of said engineer on approaching said crossing, so far as the character and condition of said crossing is concerned, was to sound the whistle of his engine at least eighty rods before his engine reached said crossing, and to ring the bell thereof from the time said whistle was sounded until his engine passed over said crossing. In other words, such engineer owed no other or greater duty to the public under the law when approaching the crossing in question than he owed when approaching any other crossing over the [96]*96railroad track, and if the jury believe that the engineer in charge of the engine which struck the plaintiff’s husband sounded the whistle of his engine at least eighty rods before his engine reached said crossing and rang the bell thereof from the time said whistle was sounded until his engine passed over said crossing, then the jury cannot find a verdict in plaintiff’s favor on the first or second alleged acts of negligence in the first count of plaintiff’s petition.”
It will be observed that by this instruction the jury were told that the only duty of the engineer, on approaching said crossing, so far as the character and condition of said crossing was concerned, was to sound the whistle of his engine at least eighty rods before the engine reached said crossing, and to ring the bell thereof from the time said whistle was sounded until his engine passed over said crossing, and that, in effect, if the jury believed the engineer discharged these duties they could not find a verdict in plaintiff’s favor on the first or second alleged acts of negligence in the first count of the petition; while, by plaintiff’s instruction aforesaid, there was imposed upon those in charge of the train the further and additional duty of exercising a degree of care in the operation of such train commensurate with the danger of collision reasonably to be apprehended at that location, and that if they failed to do so, and in consequence thereof the said E. B. Porter received the injuries from which he died, the jury should find for the plaintiff.
The two instructions are clearly in conflict and irreconcilable.
The most that can be said for plaintiff with respect to the alleged failure of those in charge of the train to sound the whistle and ring the bell when approaching the crossing is that the evidence is somewhat conflicting, and that as the question was properly submitted to the jury and they found that those in charge of the train failed to ring the bell or sound the whistle [97]*97as required by law, this court should not, therefore, interfere with the verdict. But conceding that question to be settled in plaintiff’s favor, that is, that defendant’s servants in charge of the train were guilty of negligence because of failure to sound the whistle at least eighty rods before the engine reached the crossing and to keep the bell ringing until said crossing was passed, as provided by law, that would not entitle plaintiff to recover, provided the deceaséd was guilty of negligence contributive to his death. There is no pretence that he either looked or listened when about to cross the track, when by listening he could have heard, and by looking he could have seen, the approaching train in time to have avoided the injury. In doing so he would simply be exercising that ordinary care which the law requires of all adult persons when about to cross a railroad track at a public crossing, and if a person in crossing such track is injured by reason of the concurrent fault of himself and the railroad company he cannot recover. [Jones v. Barnard, 63 Mo. App. 501.]
It is well settled in this State that when a traveler approaches a railroad crossing he must look both ways and listen for coming trains, and the negligence of the company in failing to give proper signals will not excuse the traveler’s duty to look and listen. [Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Baker v. Railroad, 122 Mo. 533; Stepp v. Railroad, 85 Mo. 229; Donohue v. Railroad, 91 Mo. 357; Butts v. Railroad, 98 Mo. 272; Schmidt v. Railroad, 191 Mo. 215.]
In response to this well-settled rule plaintiff contends that, in the absence of any evidence on plaintiff’s behalf as to acts of care on the part of deceased, he is presumed to have looked and listened and to have exercised ordinary care to avoid possible collision with defendant’s trains while he was attempting to cross the [98]*98track. This may be conceded to be well-settled law, as the authorities cited by counsel for plaintiff abundantly show; but this presumption is overcome by the logical and irresistible conclusion that deceased, had he listened, could have heard the train, and, had he looked, he must have seen it in time to have avoided the collision, and having failed to take such precautions he was guilty of negligence as a matter of law. [Schmidt v. Railroad, supra.] Besides, the uncontradicted evidence of the fireman on the engine was that the deceased did, in fact, look around before entering upon the track and that he saw the train, but that Porter “drove directly on the crossing, he urged his horses right over the crossing of the track,” which affirmatively shows negligence on the part of the deceased.
There remains for consideration but one other question, which is as to whether defendant’s employees in charge of the train could have discovered the perilous situation of Porter, or did so discover it, in time to have prevented the collision, and did not take proper and necessary steps to prevent it. To determine this question we must look to the testimony of the fireman on the train, the only witness who was in a position to see the whole occurrence. He testified as follows:
“ Q. As you ran up toward the trestle work across Cow Creek and Sni crossing, state to the jury if you saw at any time Mr. Porter or the man that was struck, on the country road, and if so, where you first saw him and where the engine was? A. Well, of course you understand there is a curve in the track, you have to go around the bulk of the curve before you can see. • The bridge of course is on the left hand side as you go around the curve, I saw the team approaching the bridge. Now they kept going right along and I watched them and when they got a little closer around the team started up in a trot and I says to the engineer, ‘ There is a team on the bridge, ’ I says, ‘ There is á man on the bridge.’
[99]*99“Q. What did he do, if you remember? A. Shut off his steam and blowed the whistle.
“Q. Did you say anything else to him? A. I said, ‘I believe he is going to cross ahead of us.’ During this time this man looked around and saw the engine.
“Q. What did he do then? A. He urged his horses ahead.
“Q. What did the engineer do, if anything, when you told him you believed he was going to cross the track? A. The engineer put on his air.
“Q. Do you know what is 'meant by the emergency stop? A. Yes, sir.
“ Q. Well, how did he put on his air then ? A. He set his air, I couldn’t say just how.
“Q. What happened after that, how did the man in the wagon proceed, tell it just as you saw it, just tell as you saw it there, and if the man drove directly on the crossing? A.' Why, the man drove directly on the crossing, he urged his horses right over the crossing of the track. •
“Q. Now state to the jury, it struck on the crossing right there, did it? A. Yes, sir.
“Q. At the Little Sni crossing? A. Yes, sir.
“Q. From the time you saw that man as he was approaching from the county bridge until he went up on the crossing and was struck, was he out of your sight? A. No, sir, he was not.”
Those in charge of the engine had the right to presume that Porter would not leave a place of safety and enter a place of danger, and were not negligent in not stopping the train sooner, as the evidence clearly shows that they did everything in their power to stop or check up the train after they discovered the perilous position of the deceased. There is no evidence showing or tending to show that those in charge of the train were derelict in this regard.
It is manifest, from the evidence, that the deceased [100]*100could not have failed to see the approaching train, and that in fact he did see it, but that he nevertheless urged his team over the crossing. And although “the defendant may have been negligent in failing to give signals for the crossing, . . . yet the deceased having lost his life through his own negligence in failing to discharge the duty imposed upon him by law, in his situation, the plaintiff cannot recover for his death.” [Hayden v. Railroad, 124 Mo. 566; Sanguinette v. Railroad, 196 Mo. 466.]
Our conclusion is that the court should have given the instruction in the nature of a demurrer to the evidence, at the close of all the evidence, as asked by defendant. The judgment is reversed.
All concur.