author: GRAVES, J.

text:
    MOLLIE SISSEL, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    November 25, 1908.
    1. CONTRIBUTORY NEGLIGENCE: Not Pleaded: Demurrer. Even though there is no plea of contributory negligence, the trial court is authorized to take a case from the jury, upon a demurrer to the evidence, whenever it is shown by plaintiff’s own proof that there was such contributory negligence as to preclude a recovery. But without such a plea, defendant should not be permitted to affirmatively show that there was contributory negligence.
    2. -: Section Hand: Heedless of Approaching Train, The section hand was at work at the end of the ties, outside of the rails, and was facing the direction from which the train was approaching. By stepping back a foot or two he would have been out of danger, but he remained, and just as he was straightening up, he was struck by the pilot beam and killed. The foreman and another man Were working inside the rails between ■ him and the train, and they had dicussed with him that the train was coming, that it was running fast, and stepped out of the way. No whistle was sounded or bell rung, not even at the road crossing not far away. The view was clear, and the train could have been seen for a half mile. Held, that he was guilty of such contributory negligence as bars a recovery by his widow, and the trial court properly sustained a demurrer to' the evidence.
    3. -: -: -: Aware of Danger: Humanitarian Doctrine. The engineer in charge of a railroad train, even though he sees a section hand at- work on or near the track in time to stop the train so as to' avoid striking him, and sees that he is not getting out of the way, is not bound to stop 'the train lest he be struck. Section men on the track are presumed to look after their personal safety, and to get out of the way when they know, as in this case, that the train is approaching; and unless there is something unusual in the circumstances, the humanitarian doctrine does not require that the train be stopped or slowed down to permit them to get out of its way. Nor does it apply because no distress signal was sounded or the bell rung, when the section man was at work at the end of the ties and by a single step could have got out of the danger limit, and the other men near him and nearest the train did step out of danger.

      Appeal from Greene Circuit Court. — Row. Jas. T. Neville, Judge.
    Affirmed.
    .R. C. Young, A. W. Lyon and F. T. Stockard for appellant.
    (1) 1. A demurrer to the evidence admits every fact put in evidence by the opposing’ party and every reasonable inference from every such fact. Lynch v. Railroad (Mo.), 106 S. W. 74. 2. Under the pleadings in this cause there is but one issue, which is, “Did the deceased voluntarily bring his death upon himself?” State ex inf. v. Delmar Jockey Club (Mo. Sup.), 98 S. W. 539.. 3. To charge that an act was voluntarily done is to exclude the charge that it was negligently done. 4. The statement of the legal conclusion that plaintiff was guilty of contributory negligence, without the statement of the facts constituting such negligence, tenders ho issue whatever. Mallinkrodt Chem. Co. v. Nemnich, 169' Mo. 396. 5. Under the facts in evidence and the logical and reasonable inferences arising from those facts plaintiff should have been permitted to go to the jury. Lynch v. Railroad, supra; Morgan v. Railroad, 159 Mo. 262; Hinzeman v. Railroad, 199 Mo. 56; White v. Railroad, 202 Mo. 539; Abbot v. Railroad, 121 Mo. App. 582; Chamberlain v. Railroad, 133 Mo. 587; Reardon v. Railroad, 114 Mo. 384; Lloyd v. Railroad, 128 Mo. 595; Smith v. Railroad (Mo. App.), 107 S. W. 22. (2) The court erred in admitting evidence of the custom of section men in leaving track on the approach of trains. Chamberlain v. Railroad, 133 Mo. 587. (3) Evidence of the negligence of the engineer in running across the public highway crossing, just before he struck the deceased, without sounding the proper danger signals, is certainly evidence from which to infer negligence in striking the deceased. It is also evidence from which to infer the fact that deceased may have been wholly unconscious that the train had crossed the highway. He may have been waiting for and expecting that very signal as a warning to look out for the train. Railroad v. Eisdale, 87 S. W. 1063.

      W. F. Evans and Woodruff & Mcmn for respondent.
    (1) The evidence shows that plaintiff’s decedent knew of the approaching train; that he and others heard it herald its approach to the town of Republic, half a mile away, and discussed its identity; that he and his working companion Brewster, after setting the handcar off and after the train had then approached close enough to be in sight and enable them to determine whether it was a passenger or freight, looked at it and remarked that it was a freight, remarked upon its speed; that the deceased then went to. work on the outside of the rails of the track, with his face toward the approaching train, which came making a noise that could be heard half a mile away, and there remained until he was struck; that all of his associates heard and knew of the approach of the train, and that by looking he could have seen, or listening he could have heard, and the witnesses establish the fact that he both did see and hear. "Under these circumstances he was guilty of such contributory negligence, continuing up to the instant of the collision, as to bar recovery. Zumault v. Railroad, 175 Mo. 288; Sharp v. Railroad, 161 Mo. 214; Holmes v. Railroad, 103 S. W. 624; Tanner v. Railroad, 161 Mo. 497; Van Bach v. Railroad, 171 Mb. 346; Loring v. Railroad, 128 Mo. 359; Brock-smith v. Railroad, 205 Mo. 435. (2) And even if defendant’s engineer in charge of the engine which struck and killed the deceased saw the deceased working beside the track with his face toward the approaching train, as it labored with a great noise up the grade, he could infer that the deceased saw and heard the train and that he would follow the prudent and usual course as well as imitate the example of his fellows, and step out of the line of danger, if he was in danger, before the train struck him, and the engineer had authority to proceed upon that presumption and was not negligent in so doing. Van Bach v. Railroad, 171 Mo. 347; Boring v. Railroad, 194 Mo. 549; Buyer v. Railroad, 174 Mo. 350'; Boyd v. Railroad, 105 Mo. 381; Moore v. Railroad, 176 Mo. 528. (3) And again, even if defendant’s engineer was or should have been at his post looking down the track as he approached the place where the section gang was at work and where the deceased was, struck and injured, what would he have seen?- The section gang dispersing, no person on the track; the deceased on the north side of the rail at the end of the ties, facing the approaching train, presumably a prudent person having proper regard for his own safety. And if either the deceased or any of the others was in the line of danger from the approaching train, in plain view and making a loud noise, he would presumably be on the lookout for it and would step out of its way as it approached and leave the way clear. This would have been according to this court the conclusion of an ordinarily prudent-manager of a moving train. Tanner v. Railroad, 161 Mo. 512; Sites v. Knott, 197 Mo. 712; Buyer v. Railroad, 174 Mo. 350. (4) An engineer in charge of a train has a right to presume that section men at work on the track will keep out of danger, and not until he is shown to have good reason to believe that they are not going to do so is it his duty to employ all possible means to avoid injuring them. If will not do to apply the last-chance rule in all its strictness to section men whose business it is to- work upon and keep in repair railroad tracks, it being their duty to look out for trains and see them and to move out of the way, it being common knowledge that these men often voluntarily wait until trains get dangerously close to them to step out of danger to let the trains pass by. Evans v. Railroad, 178 Mo. 517; Helm v. Railroad, 185 Mo. 223 ; Carrier v. Railroad, 175 Mo. 482.
   GRAVES, J.

Action by the widow of George Sissel, deceased, for the alleged negligent and wrongful killing of her husband by one of defendant’s trains, and damages laid at the sum of $5',000. The petition, after the formal charges of the corporate existence of defendant and the business in which it was engaged, avers that for ten days prior to the date of the accident, alleged to be September 16, 1904, deceased had been in the employ of the defendant as section hand, and at the date of the accident was engaged in work upon its railroad tracks. The petition is exceedingly long, but the negligence charged therein is summarized thus in the concluding portion thereof:

“That the servants, agents and employees of defendant at the time and place aforesaid, when and where plaintiff’s said husband was injured as aforesaid, and whilst so running, conducting and managing said locomotive and cars thereto attached, negligently and carelessly failed and neglected to give warning by the ringing of the bell, or the blowing of the whistle, to plaintiff’s said husband of the approach of said locomotive and the cars thereto attached, when they saw or by the exercise of ordinary care could have seen the perilous situation in which plaintiff’s said husband was placed, and thereby have warned plaintiff’s said husband of the near and dangerous approach of said train so that he could have gotten out of the way.

“And by the negligence and failure of the said servants, employees and agents when they saw, or by the exercise of ordinary care could have seen, the perilous situation in which plaintiff’s said husband was placed, to use the brakes or other appliances provided for stopping said train, made up as aforesaid, and their negligence and failure to use the appliances provided for stopping said train, made up as aforesaid, and their negligence and failure to use the appliances provided and at hand for putting- said train under control and stopping same before it struck and killed her said husband.

“And by the negligence and carelessness of defendant’s said agents, servants and employees in charge of said engine and train of cars, in carelessly, negligently and in violation of law, running across the said railroad crossing, located as aforesaid at a point at about one-fourth of a mile northeast of where plaintiff’s said husband was struck and fatally injured, without first either sounding the whistle or ringing the bell attached to said engine, when,' if said engineer in charge of said engine had complied with the law in that respect, and rung said bell or blown said whistle, the warning thereby given could have been heard by plaintiff’s deceased husband, and enabled him to be on guard against the near and dangerous approach of said train and thus lessened the chances of his receiving the injuries complained of herein.

“And by tbe oversight, omission, failure and neglect of the defendant’s said section foreman, and defendant’s other agents, servants and employees to- instruct plaintiff’s said husband to be on the lookout for passing trains and the quitting of his work at a proper and safe time and distance "to avoid the'danger arising from approaching trains.”

The answer in the first paragraph admits the corporate capacity of the defendant and that it operated the railroad in question, and then concludes thus: “But denies each and every other allegation in said petition and having fully answered, asks to be discharged with its costs.”

The second paragraph of the answer is couched in this language:

“Defendant for another and further answer, and separate defense, states that the injuries sustained by George Sissel were brought about by, due solely, and the direct and immediate result of negligence and carelessness on the part of the said George Sissel, in that he voluntarily and knowingly placed himself upon the railroad track of the defendant, immediately in front of the approaching train, which he then and there saw, and there remained until struck by said engine, when by the exercise of ordinary care for his own safety, he could, by taking a step, even after the train was in a distance of one rod of him, have returned to a place of safety, but negligently and carelessly failed to do so, and that said injuries were the result of said carelessness and negligence on his part, and not due to any act or omission of defendant, its agents or servants.
“Wherefore, defendant prays to> be discharged with its costs.”

,We set out this answer for the reason that a point is made thereon in the briefs. No reply was filed by the plaintiff, but the case proceeded as if one had been filed, and no special point is urged for the failure to file reply.

Upon trial the plaintiff was cast upon a demurrer to the evidence, forced to take a nonsuit, which the court nisi, upon timely motion, refused to set aside, whereupon she appealed to this court. The case therefore requires a full statement of the facts shown.

The plaintiff in her own behalf said that deceased had been in the employ of defendant for eleven days preceding the accident; that he died September 16th, at seven p. m., about two hours after he was brought home; that deceased was a healthy man, twenty-eight years of age; that he had never done railroad work prior to the employment; that he complained of being hurt in the right side.

By Dr. Matthews, the coroner of the county, who examined the body of deceased the day after the injury and death, it was shown that the right collar bone was broken, the right side bruised and ribs broken and the right hip broken, or rather that the crest of the hip was mashed in. This physician also says that the injuries were confined to the right side and none were in front.

Michael Eagen testified that he was section foreman; that he, Charles Brewster, Jim Poston and deceased were at work one-half mile west of the depot at Republic; that deceased, Sissel, with Brewster, was working some forty or fifty feet to the northeast of the place where he and Poston were at work; that the railroad at that point ran from the northeast to the southwest; that Sissel and Brewster were between him and the depot station at Republic; that Sissel had been working for eleven days; that Sissel was on the north side of the track and Brewster was on the south side of the track, near the ends of the ties, leveling up -the track; that Sissel was in such position that by moving back one foot he would be in an absolute place of safety; that there was a road crossing about half way between the depot at Republic and the place where they were working; that at the time of the accident Sissel was in a stooping position using his shovel, leveling off.the ground; that Sissel had gotten about half-straightened up when he was struck by the end of the pilot beam of the engine and knocked fifteen or twenty feet; that the whistle was sounded for the station at Republic, which was the last time the witness noticed the sound of the whistle; that no whistle was sounded or bell rung just before Sissel was struck; that the speed of the train was not slackened, hut that he was so excited he paid little attention to the fact; that after the train passed they picked up Sissel and took him home on the hand-car.

Such is the substance of the testimony of this witness on his examination in chief. On cross-examination further light upon the situation is given.' The substance of the cross-examination is as follows: That Sissel gave his age at time of employment as twenty-seven years, and was a man in sound health, with good sight and hearing; that when he heard the train whistle, he called the attention of the men, including Sissel, to- the fact; that they had their handcar off on a private road-crossing, which was against the rules of the company; that he thought the whistle was from No. 15, which was a World’s Fair Special Passenger Train, as it was about due; that he then said to Brewster and Sissel, “Now I expect that is fifteen and the roadmaster might be on, and we had better run our car off the crossing and save giving us a jacking-up;” that they all talked about it being fifteen; that Brewster and Sissel went to remove the hand-car and he never noticed them any more until the train was getting close to deceased; that both he and Poston called to deceased to “look out,” but hardly thought deceased heard them; that before this they all discussed the fact that the train was coming, that it was an up-grade there, and the train was making a loud noise by making a heavy exhaust or puffing, which he heard for half a mile; that the speed of the train was, in his judgment, thirty miles per hour; that he and Poston were working between the rails and deceased and Brewster on the outside of the rails; that as the train approached he and Poston and Brewster stepped aside, and when they did so were in position to have been seen by the engineer; that the approaching train could be seen for at least a half mile; that the train was approaching' from the northeast; that the end of the pilot heam which struck deceased projected at least twelve inches over the outside of the rails; that a man working on the ends of the ties, as was deceased, was within twelve inches of safety at any time; that the section men were in the habit of remaining on the track and at work until the trains were very close to them and step out of the way; that from the conduct of deceased after his employment, witness did not think he was an experienced railroad man; that in “dressing the trad?,”• such work as they were doing that day, two men generally worked together, two in the center of the track, between the rails, and two on the outer edge and outside of the rails; that witness and Poston were working in the center and "deceased and Brewster on the outer edge, one upon each side and about ten feet apart; that Sissel was facing toward Republic and the approaching engine when he was struck.

Brewster was a witness and practically corroborated Eagen in all respects. He added, however, that as he and deceased returned to their work after removing the handcar they looked up and discovered that it was not the passenger train, No. 15, but a freight that was coming, and that he remarked to- deceased, “And she is coming- some, too.” That they then each returned to their work. To further detail this witness’s testimony would be but to restate in substance what was said by Eagen.

Poston was likewise a witness and his testimony agrees with that of the witness Eagen.

By witnesses Parker and Howard it was shown that they were in a buggy with a team, approaching the railroad at a crossing made by one of the streets of the city; that they observed the train, checked or turned their team to avoid a collision; that they heard no whistle or bell at that time, .and that the train was running thirty-three or thirty-four miles per hour; that they did not know what might have been done at the whistling post east of Republic.

J. Ed. Ward was another and the last witness for plaintiff. By him it was shown that he was or had been an engineer in the employ of what is now the Frisco road; that he was discharged in 1894; that in 1895 he worked in the same capacity for the Florence and Cripple Creek Railroad in Colorado and quit of his own volition; that since then he had not run an engine, but was engaged in the paint and paper business in Republic; that it was customary for engineers to look out for persons and obstructions on the track; that it was customary for engineers to keep “a sharp look out ahead at all times for section men, bridge men and any other obstructions or anything of that kind; and it is the rules that a danger signal should he sounded, the bell rung or whistle blown.” That it was a common rule to give signals to section men whether they were in danger or not. The witness does not say such a custom prevailed upon defendant’s road at or about the date of the accident.

On cross-examination he further said that when the engineer saw the section men dispersing and getting off he would naturally conclude that all of them would do so; that whether the engineer would pay less attention to men outside of the rails would depend upon circumstances; that the fact that the men were facing the approaching engine and began to disperse was one of the circumstances that would govern the engineer in determining that there was no danger; that if a man is facing an engineer the engineer always presumes that he will get off; that witness would not consider such a man in danger — to use his language: “No, I wouldn’t consider him in danger if he sees me.”

The foregoing is a full synopsis of the testimony, upon which the action of the court, nisi, is challenged in this court.

I. It is urged that the alleged plea of contributory negligence set out in the answer is but a legal conclusion, and hence this cause is here practically upon the general denial contained in the first count of the answer. The contention is that the second paragraph of the answer states a mere legal conclusion and does not plead the substantive facts. We are unable to concur in this contention. We think the answer sufficiently pleads facts to make it a good plea of' contributory negligence. But, with the views we have of the merits of this case, this matter becomes wholly immaterial. Even though there was no plea of'contributory negligence, yet the trial court would be authorized to take a case from the jury upon a demurrer to the evidence, whenever it was shown by plaintiff’s own proof there was contributory negligence, such as to preclude a recovery. Without a proper plea of contributory negligence the defendant should not be permitted to show, affirmatively, by his proof, that there was contributory •negligence, but where the witnesses for plaintiff disclose the facts, and the court is thus possessed of them, such court has but one course to follow, and that is to say. that by plaintiff’s proof ho case has been made.

The rule which this court has followed is thus stated in 5 Ency. Plead, and Prac., p. 13: “The defendant may take advantage of contributory negligence which is shown in the development of the plaintiff’s case, although he has not pleaded it as a defense.”

In Hudson v. Railroad, 101 Mo. l. c. 30, Sherwood, J., has well said: “But while contributory negligence as a matter of defense has to be pleaded in order for a defendant to avail himself of it, by the introduction of evidence to sustain that issue, yet it does not thence follow that if the plaintiff’s own testimony shows circumstances of contributory negligence wbicb absolutely defeat his right of action and disprove his own case, the defendant is not at liberty to take advantage of such testimony although produced by the adversary. On the contrary, it is well settled in this State, as well as elsewhere, that such advantage may be taken of the plaintiff’s testimony regardless of whether the special defense be pleaded or not. [Milburn v. Railroad, 86 Mo. 104, and cases cited; Schlereth v. Railroad, 96 Mo. 509.] When this occurs, it is the duty of the trial court to declare this result to the jury as a matter of law. [1 Shearm. & Redf., Neg. (4 Ed.), sees. 56, 112n; 2 Rorer on Railroads, pp, 1054, 1055.] ”

This is the reasonable rule and the common sense rule. It matters not upon what ground the plaintiff’s evidence discloses the absence of a meritorious cause, if such evidence is made to appear to the court, the court has but one duty to perform, i. e., say so, by proper instruction to the jury. In so doing the court simply says to the plaintiff, “By your own proof you have no standing in a court of justice.”

Our views upon the merits follow.

II. Now going to the merits of this case, what should be done under the facts disclosed? There is no court which has not a sympathetic chord for the unfortunate widow under circumstances like these, but upon our sympathies we are not to determine cases. From this record there is no question that deceased knew this train was approaching. The matter was discussed and he himself assisted in removing the handcar. After the handcar was removed, he and the party with him discovered that it was not the passenger train, which they all thought it to be, but was a freight train, and they likewise discovered that it was “going some.” With this knowledge, the deceased returned to his work, and continued until about the time he was struck, for he had only partially straightened up from his work when the fatal collision occurred.

Can it be said that there was not plain contributory negligence under the facts shown? We think not. If not under these facts, then we had as well say that there can be no contributory negligence in any case. Here we have the party possessed of the full knowledge of the approach of a swift moving train, deliberately going to work and giving no further heed to his own safety. Under such circumstances he had some duties to perform for himself before his widow could be allowed to recover. As said in Clancy v. Railroad, 192 Mo. l. c. 657: “The plaintiff, therefore, had no right to become so engrossed in his work as to become heedless of his danger, and as not to take proper precautions to observe the approach of cars.”

Nor does the plea of the humanitarian doctrine avail the plaintiff in this case. What in our judgment should be the rule in this class of cases is well expressed by Burgess, J., in Evans v. Railroad, 176 Mo. l. c. 517, whereat he says: “But plaintiff claims that even if deceased was guilty of negligence, yet if defendant’s employees in charge of the train became aware of Ms peril, or might, by the exercise of ordinary care, have become aware of it, in time to have enabled them by the exercise of ordinary care' to have averted the injury, and they failed to exercise such care, plaintiff was entitled to recover. It will not do to apply this rule 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 of 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 upon all such occasions, when section men are discovered at work on the track, would not only he 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 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 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. Our conclusion is that the demurrer to the evidence interposed by defendant should have been sustained.”

To the same effect is McGrath v. Railroad, 197 Mo. 97.

By plaintiff’s learned counsel we are cited to Hinzeman v. Railroad, 199 Mo. 56, which case was previously reviewed by this court in 182 Mo. 611. The writer has expressed no views upon the facts in the Hinzeman case, nor is it necessary SO' to do in this case. The facts of the two eases are widely apart. In this case the personal knowledge of the approaching train was brought home to deceased. Not so in the Hinzeman case. In this, case the evidence conclusively shows that upon the approach of the train the section men began to get off of the track and the engineer had a right to presume that they would all do so, including the deceased, especially where the facts show that he was facing the moving engine.

To our mind the facts of the case at bar not only show conclusively the contributory negligence of deceased, but fail to show negligence upon the part of defendant. This deceased was not on the track, but to the side thereof and twelve inches from absolute safety. From danger to safety was but the act of a second’s time — the taking of a short step. The engineer, if he saw anything, saw these men moving out of the way and was justified, under these circumstances, in entertaining the presumption that at the proper instant deceased, who was facing the, engine, would take the one. step.

It is urged that no signals were given at the crossing to the east of the point where these parties were at work.

Grant it that no bell was sounded or whistle blown, at the crossing; grant it further that such facts were material at all, which we do not grant in this kind of a'case, except for the argument, yet they are unavailing where knowledge of the approaching train was shown. The only purpose of signals is to give warning of the approach of a train, but the failure to give them can work no injury where the party knew the train was fast approaching.

The judgment of the trial court is right and should be and is affirmed.

Woodson, J., concurs in toto; Valliami, P. J., and Lamm, J., concur in the result and in áll of the opinion except what is said therein with reference to the Evans and Hinzeman cases.


source: Caselaw Access Project

author: LAMM, J. WOODSON, J.

license: Public Domain

text:
    CHARLES M. McGEE and RUTH J. McGEE, Appellants, v. WABASH RAILROAD COMPANY.
    Division One,
    November 25, 1908.
    1. CONTRIBUTORY NEGLIGENCE: Question for Jury. If there is any evidence at all tending to establish the defense of contributory negligence, the court is not authorized to give a peremptory instruction, for defendant, for then the question is one for the jury.
    2. NEGLIGENCE: Speed at Crossings. It is not negligence for passenger trains to run at a rapid speed over road crossings in the country, between stations, away from congested .populations. The Legislature can easily establish a rule regulating train speed at country crossings, but it has not done so.
    3. -: Humanitarian Doctrine: Country Crossing: Not Stopping Train. There is no room for the application of the last clear chance doctrine, where the boy was in the act of crossing the track at a country road crossing, and had almost reached the further rail when first seen or could have been seen by the engineer of the passenger train then only fifty feet distant and running fifty miles an hour. It being impossible to stop the train inside of several hundred feet and the train running more than fifty feet per second, an emergency brake or the distress whistle would not have avoided the accident.
    4. -: -: -: -: Could Have Been Seen by Fireman. And the fact that the fireman could have seen the boy three or four hundred feet away does not make a case for the jury, on the humanitarian doctrine. The fireman has manifold duties to perform and he is not required to glue his eye to the track at every instant, and unless the evidence shows that he did see the child in peril of the rapidly oncoming train, the company cannot be held to have been negligent on the theory that he might have seen and caused the train to be slowed down or brought to a standstill; and if he did see the boy in peril five or six seconds before the crossing was reached, it would be to indulge in mere conjecture to speculate that in that time he could have communicated his observations to the engineer and that the engineer, comprehending the communicated information, could have seized the appliances and stopped or slowed down the train, all within five or six seconds.
    5. -: Plaintiff's Burden: No Signals. Where the boy was killed at a country crossing and there is substantial evidence that the crossing signals required by the statute were not given, plaintiff is not required to show by direct or inferential evidence that the failure to give those signals was the proximate cause of the injury. There being substantial evidence that the signals were not given, the statute raises the presumption that the injury was the result of disobedience thereto, and puts the burden on defendant to show that the failure to give the signals did not cause the injury.
    6. -:-:-: Plaintiff’s Contradictory Witnesses. It cannot be assumed, in passing on a peremptory instruction for defendant, that, because the engineer, called by plaintiff, testified that the crossing signals were given, there was no substantial evidence to show that they were not given, if other witnesses testified they were not given. The mandatory instruction to find for defendant cannot be justified on the engineer’s testimony alone, though he- was plaintiff’s witness; it is for the jury to settle the conflict between plaintiff’s witnesses.
    7. -: Burden on Defendant: How Established: Neither Looking Nor Listening. Defendant, in carrying the burden of showing that a failure to give the statutory signals did not cause the injury, need not introduce testimony of its own, but such fact may appear from plaintiff’s proof. If plaintiff’s uncontradicted eye-witness testifies that the injured party in broad daylight walked upon defendant’s railroad track at a country crossing, before a rapidly approaching passenger train, without looking or listening, when to look was to see and to listen was to hear, and such injured person was an adult, the fact is thereby established that the failure to give the signals was not the proximate cause of the injury, but his conduct was negligence and bars a recovery.
    8. -: -: -: -: Child Thirteen Years Old. The boy was thirteen years old, of bright intelligence, free from any impediment, and lived near the country railroad crossing, and the railroad was a single track, and there was no confusion of tracks, switches or circumstances to mislead. Held, that, the facts being few and free from confusion and the danger to be avoided within the easy comprehension of a boy of that age, the court did not err in assuming as a matter of law that he was guilty of contributory negligence in attempting, without looking or listening, to cross the railroad track in front of the approaching train.

      Held, by WOODSON, J., dissenting, that under the most favorable light to defendant, the boy could not have seen the train until he was within six feet of the track, and could not have walked more than nine feet after the train came in sight, and the hill which obscured his view muffled its sound, and to hold as a matter of law that a boy thirteen years old was guilty of such contributory negligence as bars plaintiff’s recovery, in attempting amid such circumstances to cross the track without looking or listening, when no signal was given, is to carry the doctrine to an extreme.
    Appeal from Daviess Circuit ■ Court. — flow. J. W. Alexander, Judge.
    Affirmed,

      E. M. Harter and J. A. Selty for appellants.
    (1) The evidence was abundant to establish defendant’s failure to comply with the provisions of section 1102, Revised Statutes 1899. This made a primafacie case against defendant requiring the submission thereof to the jury even if deceased had been an adult instead of a thirteen-year-old child. Huckshold v. Railroad, 90 Mo. 548; Crumpley v. Railroad, 111 Mo. 152; Lane v. Railroad, 132 Mo. 4; Atterbury v. Railroad, 110 Mo. App. 608; Green v. Railroad, 192 Mo. 131; Smith v.. Railroad, 19 Mo. App-. 120; McNulty v. Railroad, 203 Mo. 475; Lange v. Railroad, 106 S. W. 665. (2) (a) The plaintiffs’ child, thirteen years and one month old at the time of his death, was required to exercise such care and such care only as a child of like age and intelligence would have used under like circumstances, and whether he used such care was for the jury. Boland v. Railroad, 36 Mo. 484; O’Flaherty v. Railroad, 45 Mo. 70; Ostertag v. Railroad, 64 Mo. 421; McCarthy v. Railroad, 92 Mo. 536; Eswin v. Railroad, 96 Mo. 290; "Williams v. Railroad, 96 Mo. 275; Dlauhi v. Railroad, 105 M'o. 645; Sp/illane v. Railroad, 111 Mo. 555; Burger v. Railroad, 112 Mo. 238; Schmitz v. Railroad, 119 Mo. 256; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 135 Mo. 414; Ruschenberg v. Railroad, 161 Mo. 70; Anderson v. Railroad, 161 Mo. 411; Van Natta v. Railroad, 133 Mo. 13; Campbell v. Railroad, 175 Mo. 161; Woods v. Railroad, 188 Mo. 229; Holmes v. Railroad, 190 Mo. 98; Lange v. Railroad, 106 S. W. 660; Duffy v. Railroad, 19 Mo. App. 380; Gass v. Railroad, 57 Mo. App. 574; Frye v. Railroad, 111 Mo. App. 324. (b) Indeed, it may be conceded, which we by no means do, that the act of this child, when measured by the standard applied to an adult person of ordinary prudence, was negligent, yet this would by no means deprive these plaintiffs of the right to have the jury pass upon the question as to whether or not such an act was negligent in this child. Burger v. Railroad, 112 Mo. 249; Ruschenburg v. Railroad, 161 Mo. 86; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 111 Mo. 555; Holmes v. Railroad, 190 Mo. 98; Frye v. Railroad, 111 Mo. App. 324; Railroad v. Gladmon, 15 Wall. 401. (3) It is shown by the testimony of engineer Carter that the train killing plaintiffs’ child was running at the time it struck this crossing from fifty to fifty-five miles per hour; that he could have seen this crossing when the train was within fifty feet thereof; that the fireman could have seen the crossing when three hundred or four hundred feet distant from it; that he, Carter, did not see the boy at all before he was struck; that when struck he was near the west rail; that one more step and he would have got over; that if even the service application of air had been applied when the fireman first saw or might have seen this child it would have reduced the speed of the train before reaching the crossing one-half. In other words, it is shown that had these employees in charge of this engine been, as the law exacts they should, when .approaching such dangerous crossing at sucih furious rate of speed, where the public has equal rights, on vigilant watch and lookout to prevent such catastrophes as this, the death of this child could have been avoided, and the law exacts that they both, engineer and fireman, should have observed under the circumstance in proof the perilous condition of deceased at the earliest opportunity presented therefor, and that after his position might have been known, if his injury and death could have been averted, and it clearly appears in the evidence of engineer Carter it could, the defendant is liable, and the case could well have been submitted to the jury upon this issue. Livingston v. Railroad, 170 Mo. 452; Hinzeman v. Railroad, 182 Mo. 611; Murray v. Railroad, 108 Mo. App. 501; Welsh v. Railroad, 81 Mo. 466; Dunkman v. Railroad, 95 Mo. 232; Bunyan v. Railroad, 127 Mo. 12; Guenther v. Railroad, 108 Mo. 18; Riñe v. Railroad, 88 Mo. 392; Frick v. Railroad, 75 Mo. 595; Kelley v. Railroad, 75 Mo. 138; Jager v. Railroad, 114 Mo. App. 10; Gass v. Railroad, 57 Mo. App. 574. (4) From whatever point of view this case may be considered it was clearly error to excuse defendant for its total disregard of statutory requirements and its gross negligence, and declare as a matter of law, notwithstanding defendant’s disregard of statute and inexcusable negligence, that the negligence of this child deprived plaintiffs of the submission of this case to the jury. This is peculiarly a case for the jury. Cases supra.

      J. L. Minnis and Sebree, Conrad £ Wendorjf for respondent.
    (1) Defendant was not guilty of any negligence. The whistle was blown at the whistling post eighty rods from the crossing and the bell kept ringing from within five or six hundred feet of the crossing until the crossing was reached. The engineer swears positively that the whistle was blown at the whistling post eighty yards from the crossing where the accident happened and the bell was kept ringing from a point five or six hundred feet from the crossing until the crossing was reached. All the other witnesses testified that they did not hear the whistle nor the bell. The uncontradicted positive testimony of the engineer, with only the negative character of testimony of all the other witnesses, must be regarded as true. Henze v. Railroad, 71 Mo. 638; Sullivan v. Railroad, 72 Mo. 195; Mc-Grath v. Railroad, 197 Mo. 105; Isaacs v. Skrainha, 95 Mo. 523. (2) Deceased’s negligence in not looking and listening for the train before attempting to cross the railroad track contributed to his death and precludes plaintiffs’ recoveiy in this cáse. Walker v. Railroad, 193 Mo. 453; Porter v. Railroad, 199 Mo. 82; Mockowik v. Railroad, 196 Mo. 550; Sanguinette v. Railroad, 196 Mo. 446; Green v. Railroad, 192 Mo. 131; 'Schmidt v. Railroad, 191 Mo. 215; Deschner v. Railroad, 200 Mo. 325. (3) Deceased’s age — he was thirteen years one and one-half months old — did not excuse him for his negligence in failing to look and listen for the approaching train before attempting to cross the railroad track. The evidence clearly shows without dispute that he thoroughly understood the danger of trains and was usually very cautious about them. Deschner v. Railroad, 200 Mo. 325; Walker v. Railroad, 193 Mo. 481; Payne v. Railroad, 136 Mo. 593; Graney v. Railroad, 157 Mo. 678. (4) If deceased had not the capacity to appreciate the danger of attempting to cross a railroad track without first looking for a train, plaintiffs knew that fact, and were guilty of negligence in sending deceased across the track at train time, and therefore cannot recover in this case. Wiese v. Remme, 140 Mo. 299; Koons v. Railroad, 65 Mo. 592. (5) Even if defendant had been guilty of negligence, yet since deceased’s negligence contributed to the injury, plaintiffs cannot recover. Payne v. Railroad, 136 Mo. 593; Porter v. Railroad, 199 Mo. 97; Green v. Railroad, 192 Mo. 131; Clancy v. Railroad, 192 Mo. 615.
   LAMM, J.

Plaintiffs, the parents of Oscar McGee, a minor killed by one of defendant’s passenger engines at a railroad crossing, known as Long’s crossing, in Daviess county, grounding a cause of action on the negligence of defendant’s train servants, sue to recover the statutory penalty of $5,000.

At the close of plaintiffs’ case in chief, the trial court gave defendant an instruction in the nature of a demurrer to the evidence. Thereat, they took a voluntary nonsuit with leave. Failing to get it set aside on motion, they appeal.

The petition counts on the following specifications of negligence, viz.: (1) A negligent failure to give the statutory crossing signals of hell or whistle. (2) Running its train at a reckless and dangerous rate of speed, environment considered. (3) A negligent failure to avoid the death of Oscar after defendant’s servants running the locomotive and train saw, or by the exercise of ordinary care and diligence could have seen, him in peril in time to have saved his life.

The answer is a general denial coupled with two allegations of negligence, viz.: One, an averment of Oscar’s contributory negligence in attempting to cross defendant’s railroad track without looking or listening for the approach of a train — the other, the negligence of plaintiffs in permitting Oscar to so cross defendant’s track.

The reply was conventional.

The case on the facts is this:

Oscar McGee was the rise of thirteen years in age. Plaintiffs’ counsel submit the case to us on the theory that he was a bright boy for that age and endowed with all his natural senses. He was shown to be familiar with railroad tracks and the running of trains. His father on cross-examination was asked: “Q. What caution did you give your boy about the train?” His answer was: “Well, I did not give him any particular caution, for I never knowed him to ever fall or play or stay around here, because he was very careful and scary of a train; it was hard to get him to go about a train, something that he never did to my knowledge and I never thought to caution him.” His mother on cross-examination was asked: “Q. What warning did you give him about the train, if any?’’ Pier answer was: “I did not give him none for he did not need it; he was afraid of a train; he never bothered with the train, and he never went about them; .... he was the most cautionate boy about a train, I reckon, that ever was, pretty near it, and I did not think to give him any.”

Long’s crossing is in the country. There, defendant’s track runs north and south, cutting the Gallatin and Jameson public dirt road at right angles and very nearly on a grade — the dirt road elevated a trifle to make it. The situation at Long’s crossing is but dimly outlined in the testimony. As well as we can make out, at a distance north of the crossing was a hill or ridge on the east side of the track — the latter hugging the foot of the hill and leaving a flat country on the other side, at that time a cornfield. We infer, too, that the track cut into the foot of this hill (broken by draws) at intervals north of the crossing. Whether there was a cut at the crossing is not clear, but we infer there was none. However that be, because of the hill towards the north and because of a curve, or curves, in the track to the north, a person standing at the east rail could see four hundred feet up the track and standing six feet east of the rail such person could see from forty to one hundred feet up the track.

The McGees lived north of the Gallatin and Jame-son road. From their house to the front gate on the road side, it was twenty or thirty feet. From this front gate west to Long’s crossing was, say, one hundred feet, and this front gate was, say, fifteen or twenty feet higher than the railroad track. The McGees were renters and had lived in that house but a week prior to the accident. They used the time schedule of trains to correct their clock and the family were familiar with the time of regular trains. The train in question was á regular passenger train running south and due at Gallatin south of the crossing’ at 4:03 p. m., making it due at the crossing at about 4 o ’clock. Plaintiffs introduced testimony tending to show that on the 3rd day of November, 1903, it was running ten or fifteen minutes late. But they also put on witnesses who testified it was on time there on that day. Its schedule time was twenty-eight miles an hour, but this included stops. The testimony shows it was running from forty-five to fifty miles per hour at the crossing at the time of the accident. There was evidence put in by plaintiffs from witnesses, paying no particular attention and who do not put themselves in a situation to hear distinctly, that they heard no crossing signals. By other witnesses, differently situated, they showed there were no crossing signals heard. One witness testified positively on that score. He puts himself about fifty yards from the whistling-post, was cutting corn in said cornfield and was in a situation to hear and notice. But the plaintiffs also introduced a witness, the locomotive engineer, who testified he gave the crossing signals in the proper place and in due time as prescribed by statute and, not only so>, but that the fireman was ringing the bell as the train approached for the prescribed distance.

On said date Oscar was with his father at the barn repairing a log wagon. At a certain time the father told him to go to the cornfield with a message to his elder brother, Aubray, there cutting corn. To carry it, he went from the barn to the house, from the house to the front gate and there turned west on the dirt road towards the crossing. Hearing of his errand, his brother, Roy, aged, eleven, got leave from the mother to go along. There were two eye-witnesses to the accident, the engineer and Roy. The engineer testifies he was at his post of duty looking out ahead and that his first glimpse of Oscar was as the boy got almost to the west rail and- the “instant” f the pilot picked him up. Another step or so would put him safe. Roy testifies that as he got to the front gate and had taken two or three steps following Oscar he heard the rumble of the approaching train. Attracted by it, he looked and saw the smoke stack. He stopped and called to Oscar who was eight or nine steps from the track, and a dozen or so ahead of him. Oscar, heedless of the call (quoting from Roy’s testimony) “just kept going; did not look no way; just kept going the ivay he started ... he went out towards the railroad and it looked like the train cut him right off from me.” Referring to his seeing Oscar and the smoke stack and making the call, he was asked: “Q. Well, was he standing or moving?” His answer was, “I could not tell you; I think he he kind a moving. ’ ’ Asked how fast he was moving, he replied: “Why, he was going a little faster thorn, a common walk ... I spoke to him and told him that the train was 'doming and he did not pay no attention to me.” Roy thought Oscar got safely over and went his way to the brother in the cornfield. After the train passed, Roy went to the cornfield expecting to find Oscar and did not know he had been killed until infonned of it by his father. The train stopped about six hundred feet south of the crossing. There was testimony that the engineer, on the right or west side of the cab, could see an object on the crossing coming from the east, as Oscar came, when he (the engineer) was about fifty feet away and that the fireman could see such an object three or four hundred feet. That with a mere service application of air, a train of the length, equipped and going as that one, could be stopped in six hundred feet, and in five hundred feet in an emergency. There was testimony that the speed of that train could be reduced a half or not quite a half in running three hundred feet. There was no testimony directed to showing how much the speed could be reduced in running fifty feet.

I. On such record the peremptory instruction cannot he sustained on the theory that plaintiffs’ testimony made out the defense pleaded in the answer of contributory negligence on the part of Oscar’s parents in permitting him to go upon the track. If there was any evidence at all (which we greatly doubt) tending to show their contributory negligence, that issue was clearly one of fact for the jury, and not a question of law for the court on the record before us.

II. It has always been held by this court that in the country, between stations, away from congested populations, it is not negligence for passenger trains to run at a rapid speed over road-crossings. If this long-established and well-known interpretation of the law was not satisfactory to the Legislature, it must be conclusively presumed that it would have taken up the question of rapid transit under the modern demands of commerce and established a legislative rule regulating train speed at country crossings. The allegations of the petition in that regard stated no cause of action under this proof.

III. Nor, on this record, did plaintiffs make a case for the jury on the allegation in the petition involring the humanitarian rule or the last clear chance doctrine, viz.: that defendant’s servants saw or by the exercise of due care might have seen Oscar McGtee in peril in time to have thereafter saved his life by the exercise of such care. This is so because that doctrine seizes the actual facts as they exist. It proceeds, for instance, on the assumption in this case that Oscar was negligent in getting on the track without looking or listening, and that defendant’s servants were negligent in not giving the crossing signals. It assumes the actual rate of speed the train had. Assuming all those things, then, out of the law’s tender regard for lifé and limb the doctrine is evolved that defendant’s servants owed the duty to have saved his life if they saw him, or might have seen him, in peril at the crossing in’time to have done so.

Learned counsel, as we see it, do not contend that the engineer was negligent in not stopping the train and that the humanitarian rule applies to his conduct taken by itself. Nor could they well do so; for the uncontradicted testimony is that the boy appeared in his line of vision not more than fifty feet from the pilot. Oscar had then passed over the east rail and was almost to the west rail. Obviously the die was cast and neither distress whistle nor emergency brake would have saved the situation. The engineer described it by saying that he only saw Oscar at the “instant” the pilot picked him up'. A train going fifty miles an hour would ¡cover fifty feet in less than one second, hence the engineer’s use of the word “instant” is justified. It was literally an instant; and before eye could see, brain conceive and hand execute that distance would have been covered by the locomotive.

Counsel, however, lay stress upon the fact that the fireman could see the boy three hundred or four hundred feet away. Relying on the. theory that the fireman was negligent, they argue that they had a case for the jury if the train could have been brought to a standstill or slowed down in that distance so that the boy might have escaped. There is no testimony the fireman actually saw Oscar that distance away, or at all. A locomotive fireman has manifold duties to perform and no case has come to our attention going so far as to hold that the duty of the fireman is to glue his eyes on the track ahead of the engine at every single instant of time. The law could not well be written that way. We know a locomotive fireman does not run the locomotive. We know such to be the engineer’s duty and that he alone holds the mechanical appliances to that end within his reach and dominion. The most the fireman conld do would be to lift his voice to the engineer and tell him of the danger. Allowing an appreciable time for the eye of the fireman to see, for his mind to apprehend and for his voice to be heard by the engineer, then, at the rate his train was going, before the engineer could get and act on the information, this train would either cover or nearly cover the entire distance, so that a verdict finding defendant’s servants guilty of negligence on that score would stand on mere guess. This train would run four hundred feet in five and one-half seconds. How are those mere pulse heats to be distributed between the engineer and fireman in meting out praise and blame and arriving at actionable negligence? Here are the minds of two men that must grasps an acute crisis after an interchange of intelligence. Courts being eminently practical tribunals in getting at practical and just results in the 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. Therefore 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 they failed to do on the issue now in hand. Hence the humanitarian doctrine is out of the case. Therefore it was not error to tell the jury so, as, in effect, the mandatory instruction did.

IV. With the contributory negligence of the parents, on the one hand, and the humanitarian doctrine and rapid speed, on the other, out of the case on appeal, a consideration of the remaining assignments of error may proceed on the theory: First, that it stands conceded Oscar was killed by defendant’s train at a railroad crossing; and, second, that the burden was on plaintiffs to show that defendant’s servants were negligent in failing to give the crossing signals. Was there evidence tending to show the latter?

It is a general principle in the law of negligence that plaintiff must show by direct or inferential evidence that the negligence complained of produced the injury sued for. But this is not so (as presently seen) in crossing cases where there is substantial testimony that the crossing signals were not given. It is argued on behalf of defendant there is no substantial evidence the signals were not given. But we do not read the record in that way; because:

Having put in proof by some of their witnesses that the signals were omitted, plaintiffs may not be cast as a matter of law because another witness of theirs, the engineer, testified they were given. It was the province of the jury to settle that conflict between plaintiffs’ witnesses (Knorpp v. Wagner, 195 Mo. l. c. 661), and the mandatory instruction could not be justified on the engineer’s testimony alone. This being so, on demurrer the most favorable view of the testimony must be taken, and we may assume there was evidence tending to show the crossing signals were not given. If we add to that the conceded fact that Oscar was killed, this state of proof under ■ our statute made out a prima-facie case for plaintiffs. [R. S. 1899, sec. 1102.] That section contains this clause: “And said corporation shall also be liable for all damages hereafter sustained at such crossings when such bell shall not be rung or such whistle sounded as required by this section, provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause, of such injury. ’ ’

Under that statute, plaintiffs were relieved from proof that the failure to ring the bell or sound the whistle was the proximate cause of the injury. The statute supplies the causal connection. In other words, given proof of a failure to comply with the law and that injury ensued at the crossing’ (as here), then the statute raises a presumption that the injury was the result of disobeying- the statute — that they bore the relation of cause and effect — and the burden is cast upon the defendant to show that the failure to give the statutory signals did not cause the injury. [Huckshold v. Railroad, 90 Mo. l. c. 555-6; Crumpley v. Railroad, 111 Mo. l. c. 157; McNulty v. Railroad, 203 Mo. 475; Green v. Railroad, 192 Mo. l. c. 143.]

The. contention is therefore ruled against defendant.

V. Though the burden is put by statute on defendant to show that the failure to ring a hell or blow a whistle did not cause the injury, yet in carrying that burden defendant need not introduce testimony of its' own to show that a failure to give the crossing signals did not cause the death of Oscar; for it is settled law that such fact may appear from plaintiffs’ own proof. For example, plaintiffs’ proofs may show that the injured party was guilty of contributory negligence coincident and concurrent in time and place with the negligence of defendant and when that is made to appear an action cannot be maintained. [Green v. Railroad, supra.] “The rule, however,” says Thomas, J., in Crumpley v. Railroad, supra, “in regard to contributory negligence of the injured party remains the same in this class of cases as in others.”

Now, in the case at bar, plaintiffs put in uncontradicted proof from an eye-witness, Roy McGee, that Oscar in broad daylight walked upon defendant’s railroad track before a rapidly approaching passenger train without looking and apparently without listening, when to look was to see and to listen was to hear. Such conduct in an adult would be held negligence as a matter of law and bar recovery.

But he was not an adult and, at last, the pivotal and sole question in this case has come to be this: Could the court as a matter of law impute negligence to Mm? Was it for the judge on the bench or for the jury in the box to say he was negligent on the undisputed facts ?

VI. When an issue of fact is framed and put to a jury on the question of the negligence of a minor the general rule is to so frame the instruction as to graduate the degree of care demanded of a child to his age and capacity. That rule requires that a child should be judged as a child and not as a man. But the rule does not mean that the question is always to be submitted to a jury. Children may be declared as a matter of law non sui juris at certain tender years and with certain infantile judgments. Then, again, they may be declared sui juris as a matter of law when their age, capacity and the circumstances under which they act are all considered. It may be taken as the most enlightened and accepted doctrine in the ease of infants that generally the question of their contributory negligence is one for the jury. But it is not the accepted doctrine that it may not under given circumstances be dealt with as a matter of law. If the facts are few and simple, devoid of confusion and complications, and if the danger to be avoided is so apparent as to be within the easy comprehension of a boy of thirteen years of age, if that boy is shown to be of bright intelligence and of a judgment training him to caution and care in the matter in hand — we say all these things being admitted, then there is no reason why the judge on the bench may not as a matter of law under the facts of the given case declare there could be no two opinions among reasonable men about the negligence of such a boy measured by the standard of an ordinarily prudent boy. A boy of that age knows as well as an adult that a locomotive must follow the rails and that it cannot run around him or avoid striking him if he is on the track and gets in its way. That a railroad track is a sign of danger within the easy comprehension of a child at the age and capacity of Oscar has often been held. That the eye must be used to see and the ear used to hear and thereby avoid danger is as much a part of the wisdom of an average boy of that age as of an adult. He knows as well as an adult that fire will burn, a wasp sting, water drown or a locomotive kill, or cold freeze, and may be held to know as a matter of law. Here was a single railroad track. There was no confusion of tracks, switches or circumstances to mislead, no other trains with puffing engines and ringing bells to bewilder. There was nothing to distract the attention of Oscar, no excitement to provoke inadvertence. Being on foot and master of his own volition, he walked quickly into death without listening and without looking. We say this is what he did, because it is the most favorable view to take for appellants. If we take the other view, viz.: that he looked and saw or listened and heard the oncoming train, or heard Roy’s call, then appellants’ case fails at once, for in such a case the bell or whistle filled no office. Their office was to warn. Why warn one who sees or hears and, hence, already knows? No two negligence cases are alike and in writing the law of negligence care should be taken to avoid generalization by general rules. This is so because the law of negligence adjusts itself to do justice in every particular case according to the circumstances. Confining what we have to say to the-ca se at bar, we are of the opinion that the trial court did not err in taking it from the jury.

It is not necessary to overload the case by excerpts from opinions. It is sufficient to say that the propositions advanced are sustained by many cases. For instance, Holmes v. Railroad, 190 Mo. l. c. 105, et seq., and authorities cited; Ridenhour v. Railroad, 102 Mo. l. c. 286, et seq.; Spillane v. Railroad, 135 Mo. 414; Graney v. Railroad, 157 Mo. 666; Walker v. Railroad, 193 Mo. l. c. 431, et seq.; Deschner v. Railroad, 200 Mo. l. c. 328, et seq.; Payne v. Railroad, 136 Mo. 562; Berry v. Railroad, this volume, page 593; Mann v. Railroad, 123 Mo. App. l. c. 491, et seq.

We find no fault with the ruling on the mandatory instruction. It can be sustained on the ground of contributory negligence of Oscar deduced from the evidence of plaintiffs’ witnesses.

Let the judgment be affirmed. It is so ordered.

Valliant, P. J., and Graves, J., concur; Woodson, J., dissents in an opinion filed.

DISSENTING OPINION.

WOODSON, J.

I dissent from the opinion in this case for the reason that it overlooks the rule that, in asking a demurrer to the evidence or a peremptory instruction to find for the defendant, the instruction admits as true every fact which the evidence in the case tends to prove in favor of the plaintiff. With that rule in mind let us see if the deceased boy was guilty of such negligence that a court should declare as a matter of law plaintiffs cannot recover.

The opinion states that the evidence shows that one standing sis feet east of the track could see the train approaching from forty to one hundred feet. That being true, then the jury would have been warranted in finding that the boy could not have seen the train for a greater distance than forty feet before it reached the crossing.

The opinion also states that the engineer testified the train was running about fifty miles an hour, or fifty feet a second; and the brother of deceased, who was an eye-witness to the accident, testified that deceased was going a little faster than a walk. This conrt knows, as well as the' trial conrt, or anyone else for that matter, that an ordinary person will walk ahont fonr miles an hour. If we concede deceased was going only fonr miles an hour when struck, then he was traveling only one-twelfth as fast as the train was running, which was fifty feet a second, which would be one-twelfth .of fifty feet or four and one-sixth feet a second. Now, if the deceased was within six feet of the track when he could first see the train, which was only forty feet away, then in less than one and a half seconds he would have stepped upon the track at the rate he was walking.

This is putting the evidence in the most favorable light for the defendant, but under the instruction it is our duty to look at it in the most favorable light for the plaintiffs; but instead of doing so, let us view it in the most unfavorable light. Suppose, instead of deceased being able to see the train approaching only forty feet away when he was within six feet of the track, he could have seen it one hundred feet away, as some of the testimony tended to show. At that rate the train would have reached the crossing in exactly two seconds, and the deceased would have walked about nine feet, which would have placed him beyond the center of the track. The evidence is undisputed that just at the very instant he reached the center of the track the engine struck and killed him.

Now, we have the situation in the most favorable and most unfavorable light to plaintiffs; and I submit that to declare as a matter of law that a boy of thirteen years of age by not stopping and avoiding coming in contact with the train after he was within six feet of the rail and less than four feet of the line of the passing train is guilty of contributory negligence, is carrying the doctrine of contributory negligence to an extreme not heretofore announced by this court, or supported by the text-writers upon that subject.

He was but a lad of tender years, with no cares or responsibilities resting upon his shoulders, unmindful or forgetful perhaps of the railroad and the train, and doubtless with his mind absorbed with the errand he was running for his father to his brother, approached at a brisk walk a railroad, the view of which was so obstructed he could not see the approaching train until he was within six feet of the track, and doubtless the hill which obstructed his view muffled its sound so that he did not see or hear it, and, consequently, apprehended no danger, but all at once the train hove in sight, approaching him with lightning-like speed, without warning. Under these conditions he had no time to realize the jeopardy he was in, much less to extricate himself from the imminent and impending danger that threatened him. That situation and danger caused by defendant’s negligence would have naturally frightened and confused boy or man to such a degree that he should not be judged by the ordinary rules of contributory negligence, but should be required to use such care and caution only that a person in the same situation would have done. [Siegrist v. Arnot, 86 Mo. 200.] Especially that should be the rule when applied to boys no older than this one was.

In my judgment the evidence made a clear case for the jury, and for that reason in my opinion the action of the court in giving the demurrer to the evidence was reversible error.


author: YALLIANT, P. J. VALLIANT, P. J.

text:
    JOSEPH V. GEORGE v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    November 25, 1908.

    1. SHIPMENT OF STOCK: Reduced Rates: Delay. Where a shipper of stock sues a railroad company for damages due to delay in transportation and defendant sets up as a defense a contract of affreightment to the effect that the shipment was made at a reduced rate and in consideration thereof the carrier was not to be liable for any delay in transportation or delivery of the stock, it is not necessary to decide whether or not the carrier could avoid its common law liability, if the contract does not show that there was any reduced rate; and a contract containing a stipulation for a limited liability, but with the clause calling for a reduced rate left blank, does not show a reduced rate, or any consideration for the stipulated limited liability.
    2. -: -: — : Notice, Etc. The railroad company may by a reduction of rates reduce its liability for delay in transporting stock, and as a consideration for such reduced rate it may impose a condition in the affreightment contract that the stock is not bound to be transported or delivered within any particular time, that notice of loss or injury is to be given to the company or station agent before the stock is removed from the place of destination, that a failure to give such notice shall be a bar to a recovery, and that in case of loss the damages shall be limited to a certain' sum for each head of stock. But if there is no reduced rate or other valuable consideration to .support such stipulations, none of these things, though written in the contract, signed by the shipper, is a part of the contract, and the company is liable just as if the contract had not contained any such stipulations or agreements. A stipulation for notice, etc., is not binding on the shipper unless it is supported by a reduced rate or some other valuable consideration, and a failure to give such notice, if the shipper pays the full schedule tariff rate, does not bar a recovery by him.
    3. -: -: At Tariff Rate: Meaning. An affreightment contract reciting that the price charged for the transportation is “at the rate of - tariff - per cwt.,” means that the shipment was at the regular schedule tariff rates, in the absence of evidence that the rate was in fact a reduced rate.

      4- -: Return Ticket. The statute (Sec. 1085, R. S. 1899), aiming to impose on a railrodd company the obligation to furnish the shipper of carloads of stock free transportation to tue place of shipment and return, .is, to the extent of the free return transportation in violation of the 14th Amendment of the United States Constitution, and therefore void. [Following McCully v. Railroad, 212 Mo. 1.]
    Appeal from Mercer Circuit Court.- — Hon. P. G. Stepp, Judge.
    Reversed and rema.nded (with directions).

      M. A. Low and E. M. Harder for appellant.
    (1) A common carrier may, by reason of special ■or reduced rate, limit its common law liability. Oxley v. Railroad, 65 Mo. 629 ; Rice v. Railroad, 63 Mo. 314; Ketchum v. Express Co., 52 Mo. 390; Railroad v. Cleary, 77 Mo. 634; Read v. Railroad, 60 Mo. 199 Smith v. Railroad, 112 Mo. App. 610. The recitals of a contract of such reduced rate are prima-facie evidence of the truth of such recitals. McFadden v. Railroad, 92 Mo. 343; Harvey v. Railroad, 74 Mo. 538; Crow v. Railroad, 57 Mo. App. 135; Kellerman v. Railroad, 136 Mo. 177; Duvenick v. Railroad, 57 Mo. App. 550; Paddock v. Railroad, 50 Mo. App. 328; Wyrick v. Railroad, 74 Mo. App. 406; Myers v. Railroad, 96 S. W. 737. Unless such recitals are controverted by evidence they become conclusive. McFadden v. Railroad, supra; Hart v. Railroad, 112 U. S. 331. Where a special value is placed on property shipped by reason of reduced rate, and there is a recitation of such rate in the contract, signed by the parties, unless contradicted by evidence it is conclusive thereof, and it is valid and binding. Rogan v. Railroad, 51 Mo-. App. 665; Wyrick v. Railroad, supra; Kellerman v. Railroad, supra; Com. Co. v. Railroad, 80 Mo. App-. 168; Live Stock Co. v. Railroad, 100' Mo. App. 688; Myers v. Railroad, 96 S. W. 741. (2) There being no question as to the validity of the contract and no pretense that any notice was given, it follows that the verdict should have been for the defendant as to all damages claimed by reason of the death and shrinkage of the hogs as well as by reason of the claimed decline in the market. Smith v. Railroad, 112 Mo. App. 610; Thorp v. Tel. Co., 118 Mo. App. 398; Nichols-Shepherd & Co. v. Larkin, 79 Mo. 764; McCormick ITarv. Co. v. Reacky, 100 Mo. App. 400; Bellows v. Railroad, 118 Mo. App. 500; Freeman v. Railroad, 118 Mo. App. 526; Railroad v. Patrick, 144 Fed. 632.

      Robinson & Woods for respondent.

      Note. — Decided June 29, 1907. Motion for rehearing filed, and continued from time to time to await the decision in McCully v. Railroad, 212 Mo. 1; then overruled, and opinion on motion filed November 25, 1908.

   YALLIANT, P. J.

Plaintiff recovered judgment for $138.10!, damages alleged to have been sustained by him on account of delays in delivering three carloads of hogs delivered to defendant for transportation. The appeal comes here on the idea that a constitutional question is involved. There were two suits begun in a justice’s court, where, after judgments for'plaintiff, appeals were taken to the circuit court, and when there the suits were by agreement consolidated and tried as one. The controversy concerns four shipments, a carload each, three from Princeton to Kansas City and one from Princeton to St. Joseph, the first August 4,1903, the second January 12th, the third February 9 th, the fourth March 1, 1904.

On the shipment of August 4th it is complained that there was an unnecessary delay in the delivery of the hogs and in consequence there was a damage of the lot to the amount of $60', and for a like reason there was a damage to the amount of $50: on the shipment of January 12th, and of $25 on that of March 1st. As to the shipment of February 9th from Princeton to St. Joseph the complaint is that defendant refused to pass the plaintiff as the law required back from St. Joseph to Princeton and in consequence plaintiff had to pay $3.10 for his fare.

There was testimony tending to show an unnecessary delay in the delivery of each of the three carloads of hogs at the point of destination and resulting depreciation in the market value of the hogs to the several amounts respectively claimed.

Defendant introduced in evidence the bills of lading issued on these shipments, in each of which was this clause: “said rate being less than the rate charged for shipments transported' at carrier’s risk, for which reduced rate and other considerations it is mutually agreed between the parties hereto, as follows:’’ ’ then follow stipulations to the effect that the carrier is not liable for any delay in transporting or delivering the stock, and that in case of any loss or damage the shipper must give notice in writing to an officer of the company or station agent before the stock is removed from the place of destination and failure to give such notice shall be a bar to any suit; that in no event shall the company be liable for more than $10' for a hog lost; that the shipper is entitled to ride only on the train with his stock and not to return passage, and that the contract is all to the shipper’s own free will and desire. It is signed by the company’s agent and the plaintiff. But there were blanks in the printed contract wherein it was intended, when such a contract was really to be made, to insert the rate alleged to be a “reduced rate” in consideration of which the carrier waá to be relieved of his common law duty. These blanks in these alleged contracts were not filled, there is no rate specified. There was no evidence to show what the rate was other than the regular tariff. [Kellerman v. Railroad, 136 Mo. 177.]

In the count on the January shipment after stating the delay in delivery at the point of destination and the damages ensuing, there is a statement to the effect that defendant refused to pass the plaintiff hack to Princeton and that he had to pay his fare, hut it is not therein stated how much he paid.

The only claim the plaintiff makes in reference to the February shipment is the refusal of the defendant to pass him back from. St. Joseph to Princeton. The evidence in support of that claim is that of the plaintiff’s father who went with that shipment to St. Joseph. He testified that he returned home on a passenger train and that he tendered the shipment contract to the conductor for his fare, and it was refused, and he paid the fare, $8.10. The plaintiff on being informed of this payment reimbursed his father for that outlay.

The verdict was for the plaintiff for $60’ on the August shipment, $50 on the January shipment, $25 on the March shipment, and $3.10' for the return fare of plaintiff’s father on the February shipment. -

The points made in the defendant’s brief in reference to the verdict for the several amounts of damages are all based on the proposition that, the bills of lading stating that the hogs were shipped at a reduced rate in consideration thereof, the defendant’s liability was limited.

It will not be necessary for us to discuss the question as to whether the defendant by such a contract could avoid its common law liability in such case, because the contracts in evidence do not show that there was any reduced rate or any consideration for the alleged limitation of liability.

The defendant insists that the statute, section 1085, Revised Statutes 1899, imposing the obligation on the railroad company to pass the shipper in a case like this to and from the point of destination within this State, is unconstitutional, depriving defendant of its property without due process of law, withholding from it equal protection of the law.

Defendant also questions the sufficiency of the evidence to sustain the verdict for the $3.10 fare from St. Joseph back to Princeton. The statute does not say that the bill of lading or shipping contract shall be equivalent to a pass or ticket, but in the absence of evidence showing that the railroad .company had adopted any regulation for the issuance of transportation to the holder of the bill of lading for his return we cannot say that the shipper did not have the'right to consider the bill of lading his passport. If the railroad company had established any rule or custom in such case in reference to issuing return tickets, to which the shipper ought to have conformed, it should have offered evidence of that fact. We think the evidence sufficient to support the verdict.

We are also of the opinion that the statute does not violate any of the defendant’s rights either under the Constitution of Missouri or of the United States. The purpose of the statute is not to require the railroad company to furnish free transportation to an individual for his own pleasure or business, disconnected with the live stock shipment, but it is to make the shipper or his employee in charge of the stock a part of the shipment, to include him in the transaction. The dictates of humanity, as well as the prompting of self-interest, demand that live stock in. transportation should be under the supervision of one whose interest it is to see that the animals are well cared for. The State would have the power to require the shipper of every carload of live stock to accompany it in person or by agent and require the railroad company to carry him, not as a gratuity to the individual, but to take care of the animals. ‘ When the State requires the transportation company to furnish cars of a certain kind to alleviate the suffering of live stock it involves an outlay of money by the company, but the power of the State to require it cannot be questioned. The carrying of the shipper or his employee -with the stock is an act of the same kind, and the return of the shipper to the place from which he started is hut an incident to the shipment, it is a part of one transaction. The judgment is affirmed.

All concur; Graves, J., concurs in result.

ON MOTION FOR REHEARING.

VALLIANT, P. J.

While this cause has been pending on a motion for rehearing it has been decided by this court In Bane in an opinion by Burgess, J., in which a majority concurred, that section 1085, Revised Statutes 1899, aiming to impose on the railroad company the obligation to furnish the shipper in a case like this free transportation to the point of destination of the shipment and return, is, to the extent of the free return transportation, in violation of the 14th Amendmént of our Federal Constitution, and therefore void. [McCully v. Railroad, 212 Mo. 1.] This motion for re-hearing has in fact been continued from time to time to await the decision in that case. That decision will necessitate a reversal of the judgment in this case to the extent of the item of $3.10, but it dbes not affect the other items in the plaintiff’s demand. The litigation commenced in a justice court in two separate suits; in the first suit there was but one count in the complaint filed in the justice’s court, in the second there were three counts, one of which was for this item of $3.10 for return transportation. Appeals in both cases were taken to the circuit' court and when there the two suits by agreement were consolidated. There was a verdict for the plaintiff on each of the four counts in which the damages awarded in each was separately stated, and judgment accordingly, from which the defendant railroad company appealed, the appeal being to this court because it involved the question of the constitutionality of the stat-' ute above mentioned. The judgment covering the other counts are not affected by that statute.

II. The point on which appellant chiefly relies in support of its motion for a rehearing is that in the contract under which the defendant undertook to transport the plaintiff’s hogs it was expressly stipulated that in case of loss or injury to the stock the plaintiff should give defendant notice thereof in writing, the notice to be served within one day after the delivery of the stock at destination, and a failure to give such notice would bar a recovery of any claim on account of such loss or injury; and that there was no such notice given in this case.

The contract which defendant produced in evidence recited that, in consideration of the reduced rate at which the defendant had taken the stock for transportation, certain special terms and conditions were agreed to, among which were that the stock was not bound to be transported or delivered within any particular time, that notice of loss or injury if any, as above mentioned, was to be given and failure to give the same was to be a bar to a recovery, and that in case of loss the damage should be limited to $10 on a hog, etc.

In the brief for appellant ■ on which this cause was first submitted it was contended that this was a valid contract because it was entered into by the plaintiff in consideration of the reduced rate at which the defendant received his stock for transportation. But when we looked into the contract and could find nothing to justify the assertion that there was a reduced rate we said that the special stipulations relied on by defendant had no consideration to support them. We have never questioned the proposition as presented in defendant’s original brief that a railroad company may for a lawful consideration contract with a shipper as claimed in this case. We considered the proposition too plain to require argument or citation of authorities. But now the learned counsel in their brief on this motion say: “We had no intention, though we confess our language might be so construed, to declare it our belief that a special or reduced rate was necessary to the validity of such stipulation; indeed such has never been the rule in this State.”

We understand the proposition of the counsel now to be that no consideration is necessary to support such a contract; in other words, the railroad company may charge the full tariff rate and yet limit its common law liability in the manner now claimed. If there is a decision in this State going to that extent the learned counsel have not brought it to our attention.

The railroad company in making this contract did not proceed on the theory that it had the right to charge full tariff rate and at the same time limit its liability, but on the contrary the contract read in evidence expressly says that the shipper has agreed to it in consideration of the reduced rate. It seems to have been a printed form and therefore presumably the one in common use. If the railroad company had been advised that it could limit its liability in this respect without any concession on its part it is not likely it would furnish printed forms like this to its station agents. Railroad companies are generally well advised as to their legal rights.

There can be no such thing as a contract without a consideration to support it. Our law primer told us that. If therefore the railroad company cannot obtain this limitation on its liability, or this particular right which it now pleads in bar of the plaintiff’s claim, otherwise than by contract, then it must give something to support the contract. If it is a concession that requires the shipper’s consent before it becomes binding on him, then it is not binding, even though he does consent, unless lie is paid for it. If on the other hand it is a condition that the railroad company may impose without the shipper’s consent, then the law of contract has nothing to do with it, the railroad company may simply adopt it as a regulation and the shipper is bound to accept it. If it is to be classed under the head of a reasonable regulation which the railroad company may impose without the consent of the shipper, then the railroad company may refuse to receive the shipper’s live stock for transportation on any other terms, though full tariff rate be tendered. No case has hitherto fallen under our notice in. which a railroad company has claimed such a power.

The right on which the defendant is here insisting is either a right it has independent of contract or one it has obtained by contract; if the former, the shipper’s consent is of no consequence; if the latter, his consent is of consequence only when there is a consideration to support it.

Now let us look at the cases cited by defendant’s learned counsel and see if this court has ever held the contrary. We will find in these cases ample authority for the proposition that it is lawful for a railroad •company to limit by contract its liability or impose by a contract a condition requiring notice as claimed in this case, but we are now going to search for a case that sustains the proposition of the learned counsel that no consideration in the way of reduced rate is necessary to support such a contract.

The contract which defendant produced in evidence in this case recited that the price charged for the transportation was “at the rate of-tariff-per cwt.” A shipping contract in exactly the same words in this respect was construed by this court in Kellerman v. Railroad, 136 Mo. 177, to mean that the price charged was the full tariff rate. The statute (sec. 1136, R. S. 1899) requires the railroad company to print and keep posted in their stations a schedule of freight rates and it is forbidden to charge shippers more than those rates. The highest rate that this defendant could have charged the plaintiffs for that shipment was the tariff rate, and that rate covered all that the carrier could demand for the performance of all its common law or statute duty in respect of that shipment. Therefore when the contract shows that' that was the rate charged it was vain to recite therein that it was “less than the rate charged for shipments transported at carrier’s. risk. ’ ’ The plaintiff is not here contending that the carrier assumed anything more in the way of a risk than that embraced in the duty which the law imposes upon a railroad company in the transportation of live stock carried at the regular tariff rate.

In Kellerman v. Railroad, above referred to, the railroad company was seeking to limit the amount of its liability for the loss of the bull which was the subject of the transportation agreement, on the ground that the shipping contract specified that the valuation in case of loss should not exceed $50', exactly like one of the clauses in the contract in the case at bar.

In that case, as in this, it was claimed by the railroad company that the stipulation as to value was made in view of the special rate charged, and it was expressed in that contract that if the shipper valued the bull at more than the value stated therein an addition of 25 per cent would be made to the freight rate for each 100 per cent or fraction thereof added to the value therein expressed. Yet in spite of those-specifications the trial court allowed the plaintiff over defendant’s objection to introduce evidence showing that the bull was worth $250 and the judgment was for that amount and this court affirmed that judgment. The court per Burgess, J., in that case discusses the law as to the power of the railroad company to limit its liability by contract, and, reviewing cases bearing on that subject, declares that whilst the company cannot contract to avoid liability for its own negligence yet it may contract to limit its liability in the particulars in that case mentioned, but the court said: “It will be observed that in all the cases cited upon the question now under consideration, there was an express agreement as to the value of the property, or its maximum value fixed at a specified amount in consideration for special or reduced rates, while no reduced or special rates were Contracted for in the case at bar, nor was the value of the bull fixed at a specific sum.” Then the court, after referring to other cases in this court; concludes: “Under these authorities we must hold that there was no consideration for the maximum value placed on the hull and the contract in that respect is void.”

We call notice again to the fact that the recital in the contract in that case as to the freight rate charged is exactly like the recital in the case at bar, that is, ‘ ‘ at the rate of ——- tariff per cwt. ’ ’ and the court said it meant the full tariff rate and therefore there was no special or reduced rate and therefore there was HO' consideration to support the contract.

In Richardson v. Railroad, 149 Mo. 311, the shipping contract contained a stipulation for notice similar to that in the case at bar, and also a clause limiting the value of the animal shipped, and defendant relied on both defenses. The only rate specified in the contract was, as in the case at bar, tariff rate. The court in answering the contentions of the defendant considers the cases cited and concedes that the railroad company may lawfully make a contract, but concludes the subject by saying: “The shipment was charged for at the regular and usual first-class tariff rates used by defendant, and no- reduction thereof was made. In all cases where snch limited valuations have been held to be binding, snch valuations have been fixed in consideration of some special or reduced rate. In this case there has been no snch special or reduced rate. This rule has been repeatedly announced in this State. [McFadden v. Railroad, 92 Mo. 343, and cases cited; Kellerman v. Railroad, 136 Mo. 177, and cases cited.] ’ ’

In Ward v. Railroad, 158 Mo. 226, the shipping contract contained this clause: “In consideration of the rate of tariff, which is less than the regular rate from Pittsburg, Kansas, to Kansas City, Missouri, being granted and agreed upon, to apply to the shipment herein described,” etc., a limited valuation of the goods was agreed on. The court, notwithstanding that recital, said: “There was really no: substantial testimony upon the issue tendered by defendant that the tariff rate given plaintiff was less than the regular or schedule rate, and for that reason the court might properly have given plaintiff’s instruction numbered 3. There was no consideration for the ‘reduced valuation clause’ in-the contract of shipment, and to that extent it was void and inoperative, and should not have been considered by the jury.”

The foregoing’ are the more recent of the cases cited in the brief for defendant in support of the proposition that it has never been the rule in this State “that a special or reduced rate was necessary to the validity of such a stipulation. ’ ’ Let us now turn back to the earlier cases cited.

Rice v. Railroad, 63 Mo. 314: There was no question of the consideration for the contract in that case. The plaintiff himself stated in his petition that his cattle were shipped under a special contract which required him to give notice of his loss within a certain timé, that notice was not given within that time, and then he proceeded to state certain acts of defendant that rendered it impossible to give the notice within the specified time and that the notice was given as soon as possible. When the case reached this court one of the points advanced by the plaintiff was that the stipulation in the contract as to notice was unreasonable and void, but the court said that the rules of the common law had been so far modified “as to allow carriers to limit their responsibility by special contract with their employers, provided such contract does not attempt to relieve him from liability for losses incurred by their negligence or misconduct.” That is the extent to which that case goes. No one now questions that proposition.

Oxley v. Railroad, 65 Mo. 629: Plaintiff shipped a lot of mules, one of which escaped or was lost in the transit. Defendant in its answer set up a special contract to the effect that plaintiff was to accompany the shipment and take care of the stock, that he did accompany it but neglected to take care and the mule escaped by his own negligence; also that in case of loss plaintiff was to give notice within a certain time which he failed to do. On motion of the plaintiff the trial court struck out that part of defendant’s answer. This court held that was error. The special contract pleaded was not denied or challenged on the ground of want of consideration.

Dawson v. Railroad, 76 Mo. 514: Defendant pleaded that the cattle were shipped under special contract whereby it was agreed, among other things, that in case of loss the plaintiff was to give notice within a certain time which was not done. The execution of the contract was not questioned or its validity challenged on the ground of want of consideration, but on the trial the court instructed the jury that the plaintiff was entitled to recover notwithstanding no notice was- given. This court held that was error.

Railroad v. Cleary, 77 Mo. 634, was a case in which the railroad company was plaintiff, suing to recover the contract price for carrying the defendant’s cattle. The petition stated that the cattle were shipped under special contract at $20.50 per car, which was a reduced rate, given in consideration that defendant would take care of the cattle on the trip and plaintiff was not to be liable in certain contingencies, and that in case of loss he should give notice within a certain time, etc. Defendant in his answer admitted the contract, but pleaded as a counterclaim injury to the cattle. He did not question the consideration or deny that the rate given him was less than the regular rate, but he tried to get out of it by pleading that he did not read the contract before he signed it and did not know its contents. The trial court considered that no defense, and this court affirmed the judgment.

Dawson v. Railroad, 79 Mo. 296: In the opinion it is said: “It was admitted that the sheep were shipped under a special contract by which the plaintiff agreed to assume” certain risks. There was therefore no question of consideration for the contract in that case.

McFadden v. Railroad, 92 Mo. 343: A special ■contract was relied on by defendant to limit the amount of its liability; the contract recited that it was in consideration of the reduced rate, but the evidence showed that it was the regular rate. The court said: “Under the circumstances of this case, there was, we think, no consideration for the limited valuation placed upon the mules by defendant, and the stipulation in that respect is, Ave think, void, as releasing the carrier from the full and reasonably adequate liability for its negligence. ’ ’

Those are the only decisions of this court bearing on this question to which our attention has been draAvn, and from them we see that in every case where the contract relied on by the railroad company was not supported by a consideration in the way of a reduced rate it was held to be void, and the cases in which the contracts were sustained were those wherein their validity was questioned only on the ground that it was against public policy or that the stipulations were unreasonable or that the facts of the case excused the literal compliance with the terms. We do not feel called upon to go outside of our own books to consider cases relating to contracts of express companies, telegraph companies or the like, because whilst between such companies and railroad companies there are some points of resemblance, yet there are also points of difference. We are now dealing with a railroad company whose duty is to a large extent prescribed by our statute and we find ample authority in our decisions for the views herein expressed.

It is of no consequence that the shipper in this case signed the alleged contract; in all the .cases above referred to in which the contracts were held void for want of consideration the shippers had signed the contracts.

The motion for rehearing is overruled. The judgment of this court of date June 29, 1907, affirming the judgment of the circuit court, is set aside, and the judgment of the circuit court is! reversed and the cause remanded to that court with directions to enter judgment for the plaintiff for $135, being in accordance with the verdict of the jury for $60 on the cause designated in the verdict as case number 44, and $50 on the first count in the cause designated as case number 56, and $25 in the second count in that cause, and to enter judgment for the defendant on the third count in case number 56 which is the count covering plaintiff’s claim of $3.10 for return transportation, the judgment to be entered as of the date of the original judgment, September 17, 1904. It follows that appellant recovers its costs in this court.

All concur.