NIXON, P. J.
(after stating the facts). — As we have seen in the statement of this case, this action is for a liability created by section 2864 of the Revised Statutes of 1899, amended laws of 1905, page 136, and the liability of defendant is based upon the negligence of its servants in operating a locomotive, and there can be no liability under well-established principles unless the plaintiff has shown the negligence of the defendant’s servants. That is the very ground of recovery fixed by the statute under which this suit is prosecuted. Negligence is an affirmative fact to be established by proof before there can be any recovery on account of it, and it is a question of law whether the evidence in a given case tends to prove such negligence. Upon a consideration of the facts in this case — giving the plaintiff the most favorable interpretation that they will allow of or that can be reasonably put upon them as well as every fair inference from the facts — if negligence is not shown affirmatively from such facts, there can be no recovery by the plaintiff. [Ryan v. McCully, 123 Mo. 636, 27 S. W. 533; Keown v. St. Louis R. Co., 141 Mo. 86, 41 S. W. 926; Tarwater v. Hannibal & St. J. R. Co., 42 Mo. 163; Lovell v. Kansas City S. R. Co., 121 Mo. App. 466, 97 S. W. 193.]
[315]*315It has been said that the definitions of negligence by courts and text-writers are more numerous than any other title within the scope of the law. But after we have gone over and examined all of such definitions, at last we must come to the supreme test — the test of common sense: Did the human agent in charge of the instrumentality that caused the injury act with the care that an ordinarily prudent man under the same circumstances would have exercised? If he did, there is no actionable negligence.
Stripped of all superfluous verbiage and simply stated, the charge of negligence in the petition means and can only mean that the engineer in charge of the relief train did see or by the exercisé of ordinary care could have seen the deceased on or near the railroad track in a place of peril in time to have given him signals or stopped the train and prevented the accident. The law of negligence in this State, as charged in the petition, has been often stated. Where a defendant or its servants before an accident discovered or by the exercise of ordinary care might have discovered plaintiff .perilous position and neglected to use the means at their command to prevent the injury when the use of such means would have prevented the injury, the defendant is liable. [Kellny v. Missouri Pacific Ry. Co., 101 Mo. 67, 13 S. W. 806; Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 195.] As was said in the case of Scullin v. Wabash Ry. Co., 184 Mo. l. c. 707, 83 S. W. l. c. 764: “This is too well-settled law in this State to require any further discussion of it.” And yet in this case we have tabulated by the industry of respondent’s counsel some forty or fifty cases to establish this well-known doctrine.
In support of their contention that the demurrer of the appellant to the respondent’s evidence was properly overruled by the trial court, we have been directed by learned counsel for respondent to numerous cases decided by the appellate courts of this State. An analysis of the cases cited makes it apparent that they [316]*316do not belong to a class like tbe present by reason of an entirely different state of facts developed. In this case, there is no testimony which furnishes any reasonable ground for expectation or anticipation by those in charge of the. relief train of the presence of any person on or so near the track as to be in a place of peril at the time of the accident, or so long before the accident as to have enabled the engineer, by the use of the appliances at his command, to have stopped the train before it struck deceased. Hence the one question in this case did not arise in those cases cited and they have no application to the facts of this case. [Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216, 57 S. W. 770.]
As there are ño tangible facts or circumstances to show where the deceased went on the track or so near it as to imperil his safety, there is no proof that the engineer could have stopped his train in time to have averted the accident, and there being a failure to prove negligence, no liability would attach to 'the defendant company. So that the one question which the plaintiff had to maintain to support his case was, When did the. deceased go upon the track in front of the approaching train? Without this question being answered by tangible evidence, the judgment falls to the ground like a house of cards. The one necessary vital fact to be proven by the plaintiff was, When did the deceased go upon the track in front of the approaching train and place himself in a position of peril? This is not a question of presumption; it is a question of fact. To this question the most scrutinizing examination of the evidence fails to give any answer. It is as silent as the grave and as voiceless as the Egyptian sphinx. And no argument, speculation, citation of authorities, imagination or presumption, however ingeniously devised or protracted, will supply this missing keystone. Without it, the whole case of the plaintiff falls into shapeless ruins.
The court in this case gave but one instruction as [317]*317to negligence for tbe plaintiff to tbe effect tbat if tbe jury should find from tbe evidence tbat tbe deceased was on or near tbe track in sucb a position as to be in imminent peril of being struck by tbe approaching train, and tbat tbe defendant’s employees in charge of tbe engine were aware of bis peril in time to have enabled them by tbe exercise of ordinary care to have stopped tbe train and averted tbe injury and they failed to exercise sucb care, by reason of which tbe deceased was killed, tbe jury should find tbe issues for tbe plaintiff. This was an entirely correct declaration of tbe law provided there was any 'evidence to sustain it. .
Yet tbe court for tbe defendant gave this further instruction: “Tbe court instructs tbe jury tbat there is no evidence in this case tbat tbe deceased was on or near the track in a place of peril far enough away from tbe engine tbat tbe engineer could thereafter have stopped tbe train by tbe exercise of ordinary care on tbe part of tbe engineer in time to have averted tbe injury, and you cannot find for tbe plaintiff on tbat ground.” In other words, tbe court instructed tbe jury on tbe one band tbat if tbe deceased was on or near tbe track in sucb a position of peril tbat be was seen or could have been seen in time to have averted tbe accident, tbe jury should find for tbe plaintiff; but, for tbe defendant, tbe court instructed tbe jury that there was no evidence in tbe case tbat tbe deceased was on tbe track of tbe defendant or near it in sucb a place of danger tbat be could have been seen by tbe engineer in charge of tbe train in time to have enabled him to prevent tbe accident. In short, tbe court instructed tbe jury tbat they should sustain a demurrer to plaintiff’s evidence instead of taking tbat responsibility upon himself and acting on tbe strength of bis convictions.
The deceased knew tbat tbe train was approaching from tbe east because be went out for tbe very purpose of meeting it. He was sufficiently informed as to tbe condition of tbe approaching train — bow it was made [318]*318up — that the tender would be in front — and as to tbs lights on it. He needed no special training or long experience in order to be apprised of the danger of being on the'track in front of the approaching train.
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NIXON, P. J.
(after stating the facts). — As we have seen in the statement of this case, this action is for a liability created by section 2864 of the Revised Statutes of 1899, amended laws of 1905, page 136, and the liability of defendant is based upon the negligence of its servants in operating a locomotive, and there can be no liability under well-established principles unless the plaintiff has shown the negligence of the defendant’s servants. That is the very ground of recovery fixed by the statute under which this suit is prosecuted. Negligence is an affirmative fact to be established by proof before there can be any recovery on account of it, and it is a question of law whether the evidence in a given case tends to prove such negligence. Upon a consideration of the facts in this case — giving the plaintiff the most favorable interpretation that they will allow of or that can be reasonably put upon them as well as every fair inference from the facts — if negligence is not shown affirmatively from such facts, there can be no recovery by the plaintiff. [Ryan v. McCully, 123 Mo. 636, 27 S. W. 533; Keown v. St. Louis R. Co., 141 Mo. 86, 41 S. W. 926; Tarwater v. Hannibal & St. J. R. Co., 42 Mo. 163; Lovell v. Kansas City S. R. Co., 121 Mo. App. 466, 97 S. W. 193.]
[315]*315It has been said that the definitions of negligence by courts and text-writers are more numerous than any other title within the scope of the law. But after we have gone over and examined all of such definitions, at last we must come to the supreme test — the test of common sense: Did the human agent in charge of the instrumentality that caused the injury act with the care that an ordinarily prudent man under the same circumstances would have exercised? If he did, there is no actionable negligence.
Stripped of all superfluous verbiage and simply stated, the charge of negligence in the petition means and can only mean that the engineer in charge of the relief train did see or by the exercisé of ordinary care could have seen the deceased on or near the railroad track in a place of peril in time to have given him signals or stopped the train and prevented the accident. The law of negligence in this State, as charged in the petition, has been often stated. Where a defendant or its servants before an accident discovered or by the exercise of ordinary care might have discovered plaintiff .perilous position and neglected to use the means at their command to prevent the injury when the use of such means would have prevented the injury, the defendant is liable. [Kellny v. Missouri Pacific Ry. Co., 101 Mo. 67, 13 S. W. 806; Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 195.] As was said in the case of Scullin v. Wabash Ry. Co., 184 Mo. l. c. 707, 83 S. W. l. c. 764: “This is too well-settled law in this State to require any further discussion of it.” And yet in this case we have tabulated by the industry of respondent’s counsel some forty or fifty cases to establish this well-known doctrine.
In support of their contention that the demurrer of the appellant to the respondent’s evidence was properly overruled by the trial court, we have been directed by learned counsel for respondent to numerous cases decided by the appellate courts of this State. An analysis of the cases cited makes it apparent that they [316]*316do not belong to a class like tbe present by reason of an entirely different state of facts developed. In this case, there is no testimony which furnishes any reasonable ground for expectation or anticipation by those in charge of the. relief train of the presence of any person on or so near the track as to be in a place of peril at the time of the accident, or so long before the accident as to have enabled the engineer, by the use of the appliances at his command, to have stopped the train before it struck deceased. Hence the one question in this case did not arise in those cases cited and they have no application to the facts of this case. [Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216, 57 S. W. 770.]
As there are ño tangible facts or circumstances to show where the deceased went on the track or so near it as to imperil his safety, there is no proof that the engineer could have stopped his train in time to have averted the accident, and there being a failure to prove negligence, no liability would attach to 'the defendant company. So that the one question which the plaintiff had to maintain to support his case was, When did the. deceased go upon the track in front of the approaching train? Without this question being answered by tangible evidence, the judgment falls to the ground like a house of cards. The one necessary vital fact to be proven by the plaintiff was, When did the deceased go upon the track in front of the approaching train and place himself in a position of peril? This is not a question of presumption; it is a question of fact. To this question the most scrutinizing examination of the evidence fails to give any answer. It is as silent as the grave and as voiceless as the Egyptian sphinx. And no argument, speculation, citation of authorities, imagination or presumption, however ingeniously devised or protracted, will supply this missing keystone. Without it, the whole case of the plaintiff falls into shapeless ruins.
The court in this case gave but one instruction as [317]*317to negligence for tbe plaintiff to tbe effect tbat if tbe jury should find from tbe evidence tbat tbe deceased was on or near tbe track in sucb a position as to be in imminent peril of being struck by tbe approaching train, and tbat tbe defendant’s employees in charge of tbe engine were aware of bis peril in time to have enabled them by tbe exercise of ordinary care to have stopped tbe train and averted tbe injury and they failed to exercise sucb care, by reason of which tbe deceased was killed, tbe jury should find tbe issues for tbe plaintiff. This was an entirely correct declaration of tbe law provided there was any 'evidence to sustain it. .
Yet tbe court for tbe defendant gave this further instruction: “Tbe court instructs tbe jury tbat there is no evidence in this case tbat tbe deceased was on or near the track in a place of peril far enough away from tbe engine tbat tbe engineer could thereafter have stopped tbe train by tbe exercise of ordinary care on tbe part of tbe engineer in time to have averted tbe injury, and you cannot find for tbe plaintiff on tbat ground.” In other words, tbe court instructed tbe jury on tbe one band tbat if tbe deceased was on or near tbe track in sucb a position of peril tbat be was seen or could have been seen in time to have averted tbe accident, tbe jury should find for tbe plaintiff; but, for tbe defendant, tbe court instructed tbe jury that there was no evidence in tbe case tbat tbe deceased was on tbe track of tbe defendant or near it in sucb a place of danger tbat be could have been seen by tbe engineer in charge of tbe train in time to have enabled him to prevent tbe accident. In short, tbe court instructed tbe jury tbat they should sustain a demurrer to plaintiff’s evidence instead of taking tbat responsibility upon himself and acting on tbe strength of bis convictions.
The deceased knew tbat tbe train was approaching from tbe east because be went out for tbe very purpose of meeting it. He was sufficiently informed as to tbe condition of tbe approaching train — bow it was made [318]*318up — that the tender would be in front — and as to tbs lights on it. He needed no special training or long experience in order to be apprised of the danger of being on the'track in front of the approaching train. As far as is shown by the testimony in this case, the dnty that he was called upon to discharge in flagging the relief train did not require his presence upon the track in front of the approaching train or so near the track as to imperil his safety; that he was not required in any way, by instructions of the company or by any of its rules and regulations, or for very necessity or customary usage, to be upon the track or so near it as to imperil his safety in order to discharge the duty that he had undertaken.
Again, the engineer in charge of the relief train had no reasonable grounds to apprehend that the flagman in discharge of his duties would be in front of the engine or so near the track as'to imperil his safety in flagging the train. Consequently, this engineer was not required to discharge the same duty towards the deceased that he would ordinarily have been required to discharge if he had been approaching a public crossing, or passing through any place where he should have expected to meet pedestrians crossing the track or in cases where he would expect workmen on the track. Nor had he any right to expect or apprehend, so far as the evidence goes in this case, that the deceased in flagging the train would expose his person in any way to be injured by this train. It is true, the evidence shows that after the explosion of the torpedoes under his train, he expected a flagman to be there and that he was looking for him and trying to see him; but there is no evidence from which we can deduce any fact or inference favorable to the plaintiff that the engineer was looking for the flagman with the expectation or apprehension that it would be necessary to give him signals or to slow down or stop the train or that the flagman would be in a place of peril on or near the track.
[319]*319The same rule would apply to a flagman as to other employees working on or near the railroad track. In the case of Evans v. Wabash Ry. Co., 178 Mo. loc. cit. 517, 77 S. W. loc. cit. 518, Burgess, J., speaking for the court said: “It will not do to apply this rule (the humanitarian doctrine) in all its strictness to section men whose business it is to work upon and keep in repair railroad tracks, for they are supposed to look after their own personal safety, and to know of the time at which trains pass, to look for them and see them, and to move out of the way. It is common knowledge that these men often voluntarily wait until trains get dangerously close to them, and then step out of danger and let them pass by, and to require trains to stop on all such occasions, when sectionmen are .discovered on the track, would not only be imposing upon railroads unjust burdens, but would greatly interfere with traffic and travel. Those in charge of trains have the right to presume in the first place that such persons will keep out of danger, and not until they have good reason to believe that they will not do so, and then fail to use all proper means at their command to prevent injuring them, in consequence of which they are injured or are injured by reason of the willful negligence of those in charge of the train, should the defendant be held liable, and there was nothing of that kind in this case.” See Davies v. People’s Ry. Co., 159 Mo. 1, 59 S. W. 982; Clancy v. St. Louis T. Co., 192 Mo. 615, 91 S. W. 509.
The engineer, while less than half a mile from where deceased was struck, had sounded the usual signals given on approaching a station, which the evidence shows could have been heard a mile. When he rounded the curve and heard the first torpedo explode and first had reason to apprehend the presence of the flagman in the vicinity, he immediately tried to stop the train, and when he struck the second torpedo, he put the brake in emergency. He stated that it was a drizzly [320]*320and foggy night; that he was trying to see a light of a flagman and “straining every nerve to do so” and could see nothing; that soon after the train passed over the second torpedo, he heard a dull sound and saw an object roll down the bank which he thought might be a hog but which afterwards proved to be deceased. That the distance from where he struck the first torpedo to the place where he struck the second was a distance of sixty or eighty feet, and that at the time he struck the first torpedo he> was running twenty-two miles an hour. The three witnesses for the plaintiff testified that with all the appliances at the command of the engineer, he could not have stopped the train in a less distance than two hundred and ten feet. If then, upon plaintiff’s own showing, the engineer had no grounds to apprehend the presence of the flagman in the vicinity until he struck the first torpedo, and if at that time the deceased was at the place standing on the track where he was struck, — only eighty feet from the engine, — and the engine could not have been stopped in less than two hundred feet, there is absolutely no showing of negligence. So that if .the engineer had been charged with the apprehension of the presence of the flagman in the neighborhood by the explosion of the first torpedo, and if at that time he had known that the deceased was on the track, he could not have averted the accident. We must therefore recur to the proposition already stated, — that unless the evidence shows that the engineer in charge of the relief train did see the deceased or could have seen him by the exercise of ordinary care in time to have prevented the accident, there is no liability. Again, without any evidence as to when deceased went upon the track or how long he had been upon it before he was struck, how can the conclusion be drawn from the evidence that the engineer saw him or could have seen him in time to have prevented the accident? This case is one where the most careful examination shows that all the facts connected with [321]*321the accident fail to point to the negligence of the defendant as the proximate canse of the injury, but reveals a state of facts from which an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligence of the defendant. In such a case, plaintiff cannot rely upon mere proof of surrounding facts and circumstances; nor is the defendant called upon to explain the cause of the accident or purge itself of inferential negligence. The doctrine of res ipsa loquitur does not apply in this case; and, unless we are to assume negligence from the fact of death by reason of injuries received from a locomotive in defendant’s service, there can be no recovery in cases like this.
On the showing made by the plaintiff — and no evidence was introduced by the defendant — there was no such evidence of negligence as authorized a recovery in this case. Our conclusion is that the trial court should have given defendant’s instructions in the nature of a demurrer to the evidence at the close of plaintiff’s case. The judgment is therefore reversed.
All concur.