
    JAMES WALTER HUTCHINSON, Respondent, v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant.
    St. Louis Court of Appeals,
    April 9, 1901.
    1. negligence: CONTRIBUTORY NEGLIGENCE. The doctrine, known as the humane doctrine, prevails in this State and is to the effect that the plaintiff may recover in an action for negligence, notwithstanding his negligence directly contributed to his hurt, if the defendant by ordinary care could have prevented the accident.
    2. -:--: -: INSTRUCTION. And in the case at bar, the only ground of recovery submitted to the jury was the alleged negligence of defendant's motorman in not using ordinary care to avoid injuring plaintiff after he knew, or by proper care might have known, the latter was in a dangerous position, and an instruction presenting this view of the ease to the jury was properly given.
    
      Appeal from St. Louis City Circuit Court. — Hon. John A. Tatty, Judge.
    ApEIRMED.
    STATEMENT OE THE CASE.
    Tbe plaintiff was injured by a car of tbe defendant company at tbe crossing of Barron and Manchester avenues in St. Louis. From Kings Highway to said crossing is about one-fourtb of a njile; the track is straight and tbe view unobstructed tbe whole distance. Tbe grade dips slightly from Kings Highway westward to a bridge on Manchester avenue, and from there to the crossing, one hundred and fifty yards further, is level. The ear approached the plaintiff from behind, as he was driving west in a one-horse wagon, colliding with the wagon on the crossing as plaintiff was turning south to drive into Evans & Howard’s brickyard. The avenue- is sixty feet wide there. The defendant’s two tracks were on its south side, leaving a driveway some thirty or more feet wide for vehicles on the north. There is a strong conflict in the testimony as to whether plaintiff drove towards the crossing with the left wheels of his wagon inside the north rail, or whether the horse and wagon were entirely north of the track until about the time he turned south.,. Plaintiff testified that he continued on the track, in the manner first mentioned, from a point “between three hundred or three hundred and fifty yards” east of where the car struck him. Witnesses corroborated him.
    The testimony for the defense tended to prove he travelled north of the rails until he had either reached or was near the crossing, then turned to the left and drove on to the north track, when the car collided with the rear of the wagon. What is undisputed is, that he did not look back to see if a car was coming before attempting to cross, nor, according to Ms own testimony, after be drove onto tbe track three hundred yards or more to the east. He drove very slowly. There was testimony tending to show the motorneer in charge of the car was watching a train on the railroad just south of Manchester avenue, which inattention prevented him from observing plaintiff’s perilous position until the car was within twenty or thirty feet of the wagon. He was required, by a city ordinance, to be watching the track.
    The evidence was conflicting about the warning. The motorneer swore he rang the gong continuously for three or four hundred feet; the plaintiff’s testimony was that he first sounded it when about twenty feet from him. The motorneer also claimed he was running three or four miles an hour, without power, which he had not turned on after reaching the foot of the grade at the bridge, because he saw the wagon there and did not know but what the plaintiff “might pull in there as wagons generally do.” He said, too, a car could be stopped at that speed in from thirty-five to fifty feet. Other testimony puts the speed of the car higher, but none beyond the limit prescribed.
    The plaintiff was entitled to the use of the entire street and, therefore, was not a trespasser, while the defendant was entitled to the right of way.
    Failure to signal the ear’s approach was omitted from1 the instructions. The only ground of recovery submitted to the jury was alleged negligence of the defendant’s motorneer in not using ordinary care to avoid injuring plaintiff after he knew, or by the proper care might have known the latter was in a dangerous position. One instruction was given that plaintiff was guilty of contributory negligence if. he failed to look back at reasonable intervals tc see if a car was coming and to get off the track if he saw one. This was practically telling them be was actually negligent, for be admitted be did not look back.
    
      McKeighan, Barclay & Watts, and Robert A, Holland, Jr., for appellant.
    (1) Tbe trial court erred in giving plaintiff’s instruction to tbe jury, because the petition charges that plaintiff was “without any fault or want of diligence or care” in tbe circumstances attending bis injury; whereas, tbe theory of plaintiff’s instructioil, given to tbe jury, was tbe so-called “humanitarian rule,” authorizing recovery by plaintiff without reference to bis exercise of care. Such an issue could not properly be submitted under tbe pleadings, and hence, plaintiff’s first instruction was erroneous. Plaintiff was crossing tbe track when struck; be was not driving along it “west” as charged in bis petition. O’Brien v. Loomis, 43 Mo. App. 29; Buffington v. Eailroad, 64 Mo. 246; Waldhier v. Eailroad, 71 Mo. 514; McManamee v. Eailroad, 135 Mo. 440. (2) Plaintiff’s first instruction was in conflict with correct instructions given for defendant. Tbe giving of conflicting instructions is error. Buel v. Transfer Oo., 45 Mo. 562; Prank v. Eailroad, 57 Mo. App. 181. (3) Tbe plaintiff’s first instruction is erroneous in submitting to tbe jury for a finding, tbe question whether, from tbe time when tbe danger of plaintiff might have been known to defendant’s agent in charge of tbe car, there was sufficient time to stop tbe car by tb euse of ordinary care; whereas, there was no evidence to support plaintiff’s contention on that point. Sinclair v. Eailroad, 133 Mo. 233.
    
      John E. Bowcock and G. N. Fickeissen for respondent.
    (1) Tbe court properly submitted tbe case to tbe jury. Plaintiff pleaded that after be bad safely gotten on tbe track of defendant, defendant, by keeping tbe watcb required and by stopping tbe car as soon as danger to plaintiff was apparent, could bave avoided tbe collision. Plaintiff proved tbe ordinance, its acceptance, and tbe negligence on part of defendant, as well as tbe failure of defendant to give plaintiff any warning of their approach. Elockenbrink v. Bailroad, 81 Mo. App. 351; McAndrews v. Bailroad, 83 Mo. App. 233; Chamberlain v. Bailroad, 133 Mo. 587; Beardon v. Bailroad, 114 Mo. 406. (2) . Tbe negligence, if any, of plaintiff in not looking back for approaching cars after be bad driven on tbe track at such a distance ahead of tbe car that tbe motorman, by ordinary care, could bave stopped tbe car after be discovered tbe plaintiff in a position of danger, was not .the proximate cause of tbe collision. McAndrews v. Bailroad, 83 Mo. App. 233. (3) Plaintiff’s first instruction correctly stated tbe law. Tbe averment in tbe petition that plaintiff was without fault, placed him in no worse position than defendant’s plea of contributory negligence. Hudson v. Bailroad, 101 Mo. 13.
   GOODE, J.

Tbe general principle on which tbe case was referred to tbe jury, commonly styled tbe humane doctrine, is well supported by authorities. It is accepted in some form in most of tbe State and Federal jurisdictions. So far as this court is concerned, tbe rule is no 'longer debatable. All uncertainty about it being a substantive part of tbe law of torts has been set at rest by recent deliberate pronouncements of tbe Supreme Court. Tbe authority of tbe rule is not impugned by tbe learned counsel for tbe appellant, who only insist that it is inapplicable to tbe cause in band on account of tbe plaintiff’s clear contributory negligence which continued to tbe moment of tbe collision. This contention requires a brief examination of some cases in which tbe t doctrine has been applied. They divide into two classes and the disputation which has raged over it has been on the border line between the two. As enforced in one class, the rule has always seemed to the writer to be a phase of the doctrine of proximate cause, consistent with the theory of the entire law of negligence and with • out which the system would be incomplete. These, instances are where the plaintiff’s negligent act was detached from the injury so that the defendant’s want of care was the sole active agency in inflicting it. When an accident happens under such circumstances, the plaintiff ought not to be refused a recovery because, though remiss, his fault does not contribute to the injury. Hlustrations of this class of cases are numerous in the books, beginning with the one from which all the others proceeded. Davis v. Mann, 10 Mees. & W. 546, where the plaintiff had carelessly fettered his beast in the highway and the defendant’s servant drove over him. It is manifest that the original negligence of the owner was separated from the injury, which was proximately caused solely by the defendant’s tort. Another apt illustration is found in the Reardon case (114 Mo. 384), where the plaintiff carelessly went on the railway track and fell in endeavoring to get off when he saw a train coming. It was held that if the engineer failed to employ ordinary care to stop the train when he saw him prostrate, the company was liable. The same ruling has been made in actions where plaintiffs had fallen asleep on tracks or become fastened in cattle guards or switches or where the person hurt was a child or otherwise not of full legal capacity (Gabel v. Railway Co., 60 Mo. 475). The doctrine is exclusively met with, so far as our reading has shown, in controversies arising from injuries due to violent impacts and collisions. The above instances exemplify its use in such cases where, properly expounded, it does not clash with the doctrine of contributory negligence, though some of the applications made have laid it open to that charge. The reconciliation and harmonious working of the two rules may be achieved by considering closely whether the defendant’s carelessness was alone the proximate cause of the injury. If only the defendant’s was the proximate cause, the plaintiff, while guilty of negligence, was not guilty of contributory negligence; his failure to use care did not proximately contribute the mischief. Time elapsed between his wrongful act and the injury, during which the wrongful act of the defendant supervened or entered, as a separate agency, which, by its own independent action, wrought the unfortunate-result. If, however, the plaintiff’s want of care continues to the instant of the accident, or so near the instant as to be immediately influential in producing it, he is as much to blame as the defendant, and if the latter is compelled to compensate him, the theory of the law of negligence is thus far abandoned. When it is deemed expedient to allow a recovery under such circumstances, it must be done as a measure of public policy. The rule then becomes, in fact, an exception to the law of contributory negligence, as was said in Kelly v. Railway Co., 101 Mo. 67. The real basis of it, as it obtains in many jurisdictions in respect to injuries by cars and locomotives when the injured individual was negligent to the very instant of the collision, is to be sought, on an ultimate analysis, in its supposed necessity for the public security. The guilt of the plaintiff is excused, while that of the defendant is punished. In such instances, its administration in cases of injuries by cars and engines is attended with serious difficulty, viz.: determining when the employees of the railway'company may be justly said to have had notice that the injured party was in a position of danger. Persons frequently remain on railway tracks when a car or train is approaching, until it would be impossible to stop it in time to avoid striking them, but easily get off themselves in time. Accustomed to take care of their safety where cars are constantly moving, they grow dexterous in avoiding them and run risks. Engineers and motormen have a right to presume an individual travelling on the track will leave it, and to act on that presumption until his situation becomes alarming. Riley v. Railway Co., 68 Mo. App. l. c. 661. Just when this happens must often be largely conjectural, which circumstance weighs heavily with many against the rule in question.

The doctrine in its wider scope prevails in this State. The plaintiff may recover, notwithstanding hisi negligence directly contributed to his hurt, if the defendant by ordinary care could have prevented the accident. In the Morgan case (60 S. W. Rep. 195), where a recovery was sustained, this language is spoken: “There can be no doubt, under the evidence, that the death of the plaintiff’s husband resulted from the negligence of the defendant’s servants in charge of the train, and the negligence of the deceased himself contributing theretoSimilar expositions have been made in many other eases. Schmidt v. R’y Co., 50 S. W. 921; Klockenbrink v. Railway Co., 81 Mo. App. 351; Cooney v. Railway Co., 80 Mo. App. 226. They seem in conflict with the opinion in Hogan v. R’y Co., 150 Mo. 36. We must follow the latest controlling decision. The Morgan ease was decided in Banc.

In view of the strong utterances to be found in the foregoing authorities, it is useless to descant on the wisdom or fallacy of the rule, to explore its foundation, extol its justice, or regret its hardship. Our unmistakable duty is to enforce it as we would any other part of the law. The present case differs in no material respect, calling for its application, from the Morgan or Cooney cases, supra, which became therefore controlling precedents. The Morgan case is stronger because there the engineer did not see the deceased, who was flagrantly careless to the time the engine struck him; here the motorman did not see the plaintiff. The court below did not err in refusing an instruction to find tbe issue for tbe defendant, but rightly submitted them. This practically disposes of the case.

Complaint is made that error was committed by refusing two instructions, the effect of which was that the issues should be found for the defendant if the jury believed the plaintiff was not driving on the railway until he attempted to drive across it at the intersection of the two avenues. The answer is that two others were given which fully covered the ground.

It may be remarked that there is a material difference between the case of a plaintiff who suddenly drove on a railroad track in order to cross it and that of one who has been driving along the track for sometime and then attempts to drive off. In the first instance, the railway operatives may have no such warning nor chance to take precautions against striking him as they are likely to have in the latter, where he has been in full view for awhile, with the possibility of his situation becoming dangerous obvious to them.

The direction as to the measure of damages is’ criticised, principally because it told the jury that in no event should their “verdict be for more than ten thousand dollars, the amount sued for,” when in fact the amount sued for was twenty thousand dollars. It is inconceivable how this simple mistake could have harmed the defendant. The verdict was for eight hundred dollars and there is no claim that it was excessive.

We find no error in the record. The judgment is affirmed.

All concur.  