author: GRAVES, J. PER CURIAM.-

text:
    CHARLES D. McLURE v. NATIONAL BANK OF COMMERCE OF ST. LOUIS et al., Appellants. CHARLES D. McLURE, Appellant, v. NATIONAL BANK OF COMMERCE OF ST. LOUIS et al.
    -No. 16165.
    -No. 16168.
    In Banc,
    November 24, 1913.
    1. EQUITABLE MORTGAGE: Private Sale: Fraud: Pleading: Prayer for General Relief. Once a mortgage always a mortgage is a doctrine. of the law, and if a deed absolute on its face is, because of &' concurrent agreement, an equitable mortgage, it can be foreclosed only by proceedings in court; and, if the petition charges that the mortgagee (the grantee), without notice to the mortgagor (the grantor), sold, at private sale, land worth $75,000, for $38,000, it charges fraud such as, in the mortgagor’s suit for an accounting, there being a prayer for general relief, will authorize the court to require an accounting on the basis of the actual value of the land at the time it was sold at the private sale.
    2. EQUITY: Complete Relief: General Prayer: Accounting. When a court of equity is once invested with a matter of equitable cognizance, it will not release its hold until complete equity has been done, if there is a prayer for general relief, though the petition may be directed towards a certain specific relief. If the suit is for an accounting and the petition alleges that a certain deed was an equitable mortgage, that the property, worth $75,000, was sold, at private sale, for $38,000, it will be held sufficient to require an accounting on the basis of the value of the property at the time of the sale, if the facts alleged and proven authorize a decree on that basis and the petition asks for general relief, although its allegations would authorize an accounting on the basis of the proceeds of the sale.
    3.-: -: -: —--: Equitable Mortgage: Theory of Trial: Admission of Evidence on One Theory: Appellate Practice. Where the petition contains sufficient allegations authorizing the admission of evidence on the theory that plaintiff is entitled to an accounting on the basis of the value of the land sold at a private sale under an equitable mortgage, rather than on the basis of the proceeds of the sale, and the evidence was admitted, not on that theory, but on the theory that a grossly inadequate price gives rise to an inference of fraud, the-evidence will, on appeal, tie considered for all purposes for which it was competent, as it should have been considered by the chancellor; and if it authorizes a decree to the effect that the land was worth more than it was sold for at the private sale, the judgment allowing plaintiff credit 'for only the proceeds of the sale, will be reversed.
    Appeal from St. Louis City Circuit Court. — Ron. Moses N. Sale, Judge.
    REVERSED AND REMANDED (with directions).

      Thomas Bond and W. G. Schofield for plaintiff-appellant.
    (1) The farm bought in at foreclosure sale was-purchased and held by defendant bank only as collateral to secure a debt. 2 Pomeroy’s Equity Jur., sec* 1055, note 1; 1 Beach on Trusts and Trustees, sec. 105, note 1; Browne on Statute of Frauds, secs. 96 and 96a; Phillip v. Jackson, 240 Mo. 310; Phillip v. Hen-denberg, 181 Mo. 473; Richardson v. Champion, 143 Mo. 538; Leahy v. Witte, 123 Mo. 207; Turner v. Johnson, 95 Mo. 431; O’Fallon v. Clopton, 89 Mo. 290; Dam-schraeder v. Thias, 51 Mo. 103; McNeil v. Booth, 42 Mo. 189; Rose v. Bates, 12 Mo. 30; Reilly v. Cullen, 159 Mo. 323, 101 Mo. App. 32; O’Neil v. Capelle, 62 Mo* 202; Cobb v. Day, 106 Mo. 295. (2) The Statute of Frauds does not apply to frauds and trusts nor in cases where one party has fully performed the oral agreement. See cases under point 1; 20 Cyc. 280, 281;, Damschraeder v. Thias, 51 Mo.. 100; Simily v. Adams,, 88 Mo. App. 621; Berg v. Moreau, 199 Mo. 432; Groves v. Fulsome, 16 Mo. 543. (3) The measure of plaintiff’s relief is the market value of the farm at the time of the sale to Mrs. Kehlor. Turner v. Jackson, 95 Mo* 450; Reilly v. Cullen, 101 Mo. App. 32; 39 Cyc. 533* (4) In a suit in equity where the petition contains a prayer for general relief, the court may grant any form of relief consistent with the averments of the pleadings. Phillip v. Jackson, 240 Mo. 337. (5) A trustee who makes a wrongful or illegal sale of the trust estate or who is guilty of a breach of trust is not entitled to commissions. Reilly v. Cullen, 101 Mo. App. 39; Harrison v. Craven, 188 Mo. 610 ; Van Raalte v. Epstein, 202 Mo. 173.

      George L. Edwards and Edivard D’Arcy for respondents.
    (1) Under the pleadings it is clear, as the trial court held, that appellant is entitled only to credit for the net amount received by respondents on the sale of appellant’s land,-and not for the market value of the land. The petition is clearly a petition for an accounting of the proceeds of the Kehlor sale, and for nothing else. Plaintiff declined to amend his petition, hut stood upon the petition as filed, praying for an accounting of the proceeds of the Kehlor sale. The trial court maintains the same view of this question in its memorandum filed at the time of the rendition of the decree, holding that, “There is no actual fraud charged, and the very able counsel for plaintiff time and again during the course of the trial expressly disclaimed making any such charge against the defendants, or either of them, and the amended petition herein fully sustains this disclaimer.” "While the trial court did allow appellant to introduce some evidence of market value, after having excluded the first witnesses offered by appellant on this point, still the admission was harmless, because it was offered merely as having a tendency to support appellant’s theory that a grossly inadequate price gives rise to an inference of fraud, and was. expressly restricted by the court to that purpose only. The evidence of value, therefore, cannot now be diverted from its true purpose, in order to sustain a theory of recovery rejected by the court, abandoned by appellant, and inconsistent with his pleadings. The pleadings are the foundation of the action, and that “the point decided must be, in substance and effect within the issue.” State ex rel. v. Muench, 217 Mo. 138; Charles v. White, 214 Mo. 204; Hope y. Blair, 105 Mo. 93; Munday v. Vail, 34 N. J. L. 418; Reynolds v. Stockton, 140 U. S. 254; 3 Hughes Gr. and Rud., 49-51. (2) Appellant’s second position is that respondents, being trustees ex malefició, are not entitled to credit for their expenses necessarily incurred in the management and sale of the McLure property. Respondents deny that they were trustees ex maleficio: The facts clearly show that whatever difference of opinion there may have been between these parties as to the law of this case, both parties were acting in good faith, in the protection of their rights as they saw them. There was a difference of opinion, in the first place, as to what the contract between appellant and respondents was, and, in the next place, as to what was the effect of that contract. That-is all there is to this litigation.
   GRAVES, J.

Upon our docket appear two cases, styled and numbered as above indicated. They are' in fact cross-appeals in the same case, and the brief and arguments were made in case No. 16168, in which the plaintiff is appellant. The defendants have abandoned their appeal and now urge that the judgment below be affirmed. The force of their brief with us is fully spent combatting the plaintiff’s contentions for a new trial. This position of counsel in this court somewhat shortens the statement. The facts found by the chancellor below, may, owing to the attitude of de--fendants here, be taken as correct, except so far as they are questioned by the plaintiff. -

Plaintiff sues in equity for an adjustment of his accounts and transactions with the National Bank of Commerce in St. Louis. Pleading and proof can be fairly covered by a short resume of the facts. As a starter it appears that the Bronx Investment Company, one of the defendants, is a subsidiary corporation of the National Bank of Commerce in St. Louis. In the transaction here involved it acted for its creator, the Bank of Commerce. Some data of the transaction, both pleaded and proven, are required for a thorough understanding of the case. On and prior to April 26, 1905, the plaintiff owned 65.43 acres of land in St. Louis county, which in 1908 was near a car line and about a half mile of the city limits of the city of St. Louis. This tract had cost plaintiff $55,000 at the date of purchase and had been considerably improved by him thereafter. He alleges and swears it to be- worth $75,000 in 1908 and thereafter. In April, 1905, plaintiff gave a deed of trust on his land to secure the payment of a note made by him to the Mercantile Trust Company in the sum of $32,000. On this note he had paid $15,000 of the principal and all the interest to October 26, 1907. On and prior to May 20, 1907, the plaintiff owed to. the defendant National Bank of Commerce in the city of St. Louis on his note the sum of $42,897.72, due upon demand, which was secured by the deposit of some stocks under a collateral contract with the bank. The Bank of Commerce in May, 1907, demanded more collateral, and the plaintiff thereupon executed his note to Jesse B. Mellor, his private secretary, in the sum of $20,000, and secured its payment by a second deed of trust on the St. Louis county land. This note was deposited with the National Bank of Commerce as additional collateral for the note of $42,897.72, thus giving said bank a second lien upon the land, subject to the unpaid balance due the Mercantile Trust Company of $17,000, and accrued interest. On this $17,000 balance the plaintiff defaulted, and Moberly, the trustee in the deed of trust, at the request of the Mercantile Trust Company,' advertised the property for sale on August 3, 1908. The facts from this date on constitute the crux of this case. In describing the plaintiff’s claims in his petition, counsel for National Bank of Commerce, thus outline the position of the plaintiff upon these subsequent facts, as they claim such facts are stated in his petition:

“That on August 1, 1908, plaintiff was in default in the payment of the notes secured by .the first deed of trust, and the property was advertised for sale thereunder ;
“That the Bank of Commerce and plaintiff agreed that if plaintiff would permit the property to go to sale under the first deed of trust, the bank would buy in the property on behalf of plaintiff and take title to the property and hold same in trust for plaintiff, who should have the right, at any time within one year from the date of such sale, to redeem said property;
“That the Bank of Commerce did buy in said property at the first deed of trust sale for $18,031.59;
“That since said purchase by the Bank of Commerce, plaintiff has reduced his indebtedness to said bank by $20,040;
“That said real estate is reasonably worth $75,000;
“That in July, 1909, the Bank of Commerce sold said real estate to Lamira W. Kehlor for a purchase price, as plaintiff is informed, of $38,000, a price far below the actual value of said property.”

The foregoing is the outline of that part of the plaintiff’s petition as given by counsel for the bank. Other portions of the petition counsel for plaintiff construe one way and counsel for defendant construe another way, and this difference will call for a discussion in the course of the opinion. Upon the question as to what the agreement and understanding was as between plaintiff and defendant upon the manner in which the property should be handled at the sale under the first deed of trust on August 3, 1908, the trial court in bis findings and decree, thus speaks:

“Now, on this 19th. day of February, A. D, 1910, come the plaintiff and the defendants by their respective attorneys, and this cause coming on to he heard upon the petition and answer and the evidence adduced thereunder, and having been argued by counsel for the respective parties and the court being advised and having duly considered the same, doth find the issues herein joined in favor of the plaintiff and against the defendants; and the court doth further find that the defendant, Bronx Investment Company, a corporation, acted for and in behalf of its codefendant, the National Bank of Commerce of St. Louis, as alleged in the petition herein; that on and prior to the third day of August, A. D. 1908, the plaintiff was the owner of the land described in plaintiff’s petition, containing sixty-five and forty-three hundredths acres, situated in the county of St. Louis, State of Missouri; subject, however, to a first mortgage deed of trust securing a principal note of thirty-two thousand dollars, then past due, on which principal note the sum of fifteen thousand dollars had been theretofore' paid, and also subject to a second mortgage deed of trust, securing a principal note of twenty thousand dollars, due May 22, 1910, which last-mentioned deed of trust and the note thereby secured were held by the defendant bank as collateral security for the indebtedness of plaintiff to said bank; that on said third day of August, 1908, the defendant bank, acting by and through its codefendant, Bronx Investment Company, at foreclosure sale under said first deed of trust, bought in the property of plaintiff mentioned and described in the petition herein at and for the sum of $18,031.59; and the court further finds that said property was bought in as aforesaid in pursuance of an agreement or understanding between plaintiff and said defendant bank; that said property, when so bought in by the defendant, as aforesaid, was to be beld by said bank as ■collateral security for indebtedness then owing by said plaintiff to said bank, including the amount paid by said bank at the foreclosure sale.
“The court doth further find that thereafter, on or about the 7th day of July, A. D. 1909, said defendant bank, acting through its codefendant, Bronx Investment Company, sold said real estate so bought in at the foreclosure sale, as aforesaid, to one Lamira W. Kehlor, at and for the price and sum of $38,000; that said sale of real estate was made by the McNair & Plarris Real Estate Company a corporation engaged in the business of buying and selling real estate in the city of St. Louis, acting for the defendants and that the net proceeds arising from said sale, after deducting the commissions of said real estate agents, was the sum of $36,818.10; and the court finds and so decrees that the defendant bank was and is chargeable with the net surplus arising from said sale over and above the amount paid out by the défendant bank at the foreclosure sale, from which amount, on an accounting between the plaintiff and said bank, should be deducted the amount paid for back taxes and for taxes.for 1908, amounting to the sum of $1788.79.”

The evidence in the record amply justifies this finding. In fact, the counsel for the bank in their brief ask us to affirm this finding of facts and the decree entered thereon. The plaintiff claims that he is entitled to receive the reasonable value of his land, rather than the net proceeds of the alleged unauthorized sale, and this is the big question in the case. With it, is a question of pleading. Other facts, if necessary, may be adverted to in the opinion, but the forégoing-sufficiently outlines the case, with the exception of a short statement of the result reached in the decree nisi. After finding the facts as to the agreement as above set out, and after finding that plaintiff was entitled to credit for the net proceeds of the sale, the court then finds the snm then due by plaintiff to the bank, and after deducting the credit aforesaid, finds that the plaintiff is yet indebted to defendant bank in the snm of $10,391.70, and decrees that upon the payment of that snm within ten days, the plaintiff shall receive from the defendant all the collateral deposited to secure the $42,000 note, supra, including the Mellor note for $20,000.

. As stated in the outset, from this decree both parties appealed, but the bank abandons its appeal and asks that the judgment be affirmed. The plaintiff, however, pushes his claims, as hereinabove stated. These several contentions will be discussed in their order.

I. At the threshhold we are met with the contention that the bill in equity in this case is one only asking for an accounting on the basis of the sale of the Bronx Investment Company to Mrs. Kohler, and that to direct a decree for an accounting on the basis of the value of the property at the date of sale, would be to direct a decree beyond the purview of the pleadings. "With all due regard for the ability of distinguished counsel who represented the plaintiff, it must be said that the bill is not as clearly drawn as it might have been, but we are impressed with the fact that it sufficiently outlines the facts and circumstances of the case in such manner that, when coupled with a prayer for general relief (as is the fact here), would authorize a decree as broad in terms as is contended for by the plaintiff. The petition pleads facts sufficient do make the trustee’s deed to Bronx Investment Company an equitable mortgage, and these facts were so found by the court nisi and defendants ask us to affirm that finding here. The doctrine once a mortgage always a mortgage applies. Such a mortgage is one that can only be foreclosed by proceeding in court, and by a sale in pursuance of a judg-merit in that proceeding. The present petition charges that in the face of this fact the defendants sold this property at private sale, without notice to plaintiff, at $38,000, when it was well worth $75,000 at the time, which is in law a charge of at least constructive fraud, if not actual fraud. Indeed it might be said, owing to the gross inadequacy of price, that it rises to the plane of a charge of actual fraud. This, however, is immaterial. Fraud is fraud, whether it he constructive or actual, and the petition by all reasonable intendments charges fraud. Not only does the petition charge an unlawful private sale for a grossly inadequate price, but it further charges that defendants wrongfully converted the proceeds and denied that plaintiff had any rights therein. The hill is exceedingly long, but it states all necessary facts upon which could he predicated an accounting or recovery of the value of the property at the date of sale, and to it also is coupled a prayer for general relief.

As a general rule of equity practice it can he said that when a court of equity once gets hold of a matter of equitable cognizance, it will not release such hold until complete equity has been meted out in the case. Upon this question we have never departed from the old landmarks. Thus, in Holland v. Anderson et al., 38 Mo. 1. c. 58, it is said:

“This was a suit in the nature of a bill in equity, for rescission and cancellation of a contract in respect of an exchange of lands. The petition asked for rescinding the contract, and also prayed for general relief ; but it was admitted on argument that the prayer for rescission could not be granted, because the property had been changed in such a manner that it was impossible to have it restored. But it is contended that, although that part of the bill failed, the court should still have awarded the plaintiff compensation, under the prayer for general relief.
“Judge Story says, ‘The usual course is for the plaintiff, in this part of the bill, to make a special prayer for the particular relief to which he thinks himself entitled, and then to conclude with a prayer for general relief, at the discretion of the court. The latter can never be properly and safely omitted; because, if the plaintiff should mistake the relief to which he is entitled, in his special prayer, the court may yet afford him the relief to which he has a right, under the prayer of general relief.’ [Sto. Eq. PL, sec. 40.]
“It is a well-established rule, that where a court' of equity once acquires jurisdiction of a cause, it will retain it to do full and complete justice. It will sometimes give damages, which are generally only recoverable at law, in lieu of equitable relief, where it has obtained-jurisdiction on other grounds. [Wiswall v. McGown, 2 Barb. (N. Y. S. C.) 270.],
“We entertain no doubt about the petition being sufficient under the general-relief clause to enable the plaintiff to obtain compensation, providing the evidence made out a case showing he was entitled to such relief.”

And this is the doctrine now. [Phillips v. Jackson, 240 Mo. 1. c. 336.]

So that it may be granted that the plaintiff in the case at bar asked for both specific and general relief, yet if the facts pleaded and proven, authorize a decree for the value of the property at the time of sale, under the prayer for general relief, rather than the proceeds of the sale, and the nice equities of the case demand such a decree, it should be entered. As above indicated this bill in equity sets out the necessary facts, and the proof sustains the facts pleaded. In the Phillips case, supra, by unanimous voice we said:

“However, it is well settled in this State, that in a suit in equity under our statutes, the court may give any relief consistent with the allegations and pleadings ; and that where the petition contains prayers for general relief, it may also give relief different from the specific relief sought. [Mead v. Knox, 12 Mo. 284; Holland v. Anderson, 38 Mo. 1. c. 59; Henderson v. Dickey, 50 Mo. 161; Mason v. Black, 87 Mo. 1. c. 346; Vogelsong v. St. Louis Wood Fibre Plaster Co., 147 Mo. App. 578.] ”

The cases cited in the Phillips case thoroughly support the text thereof as quoted above. The contention, therefore, that the trial court could not have entered up a decree covering the value of the lands-at the time they were converted by the defendants is overruled. If the facts demanded it, such decree was not only authorized, but equity would require it.

n. Having reached the conclusion that the bill filed in this case is broad enough to authorize a decree allowing the plaintiff the value of the property converted at the date of the conversion, we reach several other contentions. Of these in order:

In the first place it is contended that this was not the theory below. In this defendants are in error. It is true that they contended that the petition was not broad enough to admit evidence upon the- value of the lands at the date of the sale. It is also' true that the trial court took the same view, hut this does not eliminate plaintiff’s theory of his case and of his pleading. From start to finish counsel for plaintiff urged that the petition was broad enough to cover that element, and even when it was suggested that the plaintiff could amend the hill, he still urged that his hill was sufficient.to admit proof as to the value of the land at the date of its sale by defendants to an innocent purchaser. Had the trial court adhered to his first ruling and excluded all of this evidence, then it would be’ necessary for this court to remand the cause, if we thought such evidence material under the pleadings. As indicated in our paragraph one the plaintiff was entitled to introduce this evidence under the petition as it stood, and for the purpose of showing what allowance or credit should be given him in the adjustment of the accounts between him and the National Bank of Commerce. The .evidence clearly tends to show what the Bronx Investment Company was a trustee and held this property for the plaintiff; the law fixed the right of sale and the manner of sale; the sale made was wholly unauthorized; the property under the evidence was sacrificed at an unauthorized private sale; shortly before this private sale of the whole for $38,000, the plaintiff was considering a sale of a part thereof for $40,000. All questions considered, the crucial question now presented is, is there evidence of the value hére so that we can consider it, and formulate a right judgment therefrom? We think so. As stated above the trial court first excluded this evidence, but later admitted it on the theory, quoting from defendant’s brief in the case, “because it was offered merely as having a tendency to support appellant’s theory that a grossly inadequate price gives rise to an inference of fraud, and was expressly admitted for that purpose only.” Whatever was the theory of the trial court, the evidence is in the record before us, and being in the record can be considered for all purposes for which it is competent. Not only does the plaintiff introduce evidence as to the value of the land at the date of the sale, but the defendants put on their expert real estate man upon the same question, and his manner upon the stand tended most strongly to corroborate the evidence in behalf of plaintiff. He in effect admits that by experience he was qualified to give an opinion as to the reasonable market value at the time of sale, but would not express an opinion. When asked if $38,000 was a reasonable price for the property, he declined to say that it was. So that we not only hold that the petition was broad enough to admit this evidence upon the question of the reasonable market value7 but that the evidence itself; although admitted for another purpose, is in the record, and we can consider it for all legitimate purposes. It was not only competent upon the theory upon which it was admitted, but upon the other theory as well. Being competent upon any theory, the defendant cannot now say that they were misled in not undertaking to rebut it. Defendants must come prepared to rebut all evidence, which is competent upon any theory of the case. In the instant case they did attempt to rebut the evidence, but signally failed. Their own real estate man would not say that $38,000 or even $40,000 was the reasonable market value of the land. Under the evidence, what was the value of this land at the time plaintiff was deprived of it, by the act of defendants conveying it to an innocent purchaser, or supposedly an innocent purchaser? The land cost plaintiff about $55,000 in 1892 and 1895. The most valuable portion he paid $50,000 for in 1892, and later in 1895 paid about $5000 for the other portion. He added considerable by way of improvements. It lies about one-half mile from the city limits. Experts placed its value at from $800 to $1000 per acre. Plaintiff placed its reasonable value at $75,000 for the tract. We think that $900 per acre was the reasonable value of this property at the date of its conversion. Prom this it follows that the plaintiff should have been credited in the account stated by the trial court in the decree nisi with $58,887 instead of $36,818.10, on account of this land. . Other matters of the account are properly stated. In other words, the decree nisi is right in all respects, except the trial court should have allowed plaintiff $58,887, the reasonable value of the land, instead of the $36,881.10, the proceeds of the sale after deducting the expenses and commissions of the sale. When the account is thus recast, as of the date of the judgment below, the plaintiff would not only be entitled to recover his collaterals in the petition and judgment described, without further payment of money, but would be entitled to recover from the defendants the sum of $11,678.20. This will not more than make the plaintiff whole for the wrongful act of the defendants. This private sale was in law a fraud upon the plaintiff, for which defendants should he made to account. We think from all the evidence the land of which they deprived the plaintiff was worth at’ least the $900 per acre we have allowed in the figures above given. Let the judgment be reversed and the cause remanded, with directions to the trial court to enter up a decree in accordance with the views above.expressed.

PER CURIAM.-

In the foregoing opinion of Geaves, J., in Division, Walker, J., concurs in toto. Other members of the court agree that the trustee’s deed to the Bronx Investment Company is an equitable mortgage and that the private sale of the property was an unlawful and unauthorized one, and further agree that the plaintiff is entitled to recover on the basis of the value of the property sold at the time of the sale. A majority of the court, however, are of the opinion that the cause should be remanded to the end that the issue of the value of the land may be more thoroughly tried, and the whole court is of the further opinion that the new trial should be confined to that single issue, all other issues .having been properly tried and determined before. Either party may so amend the pleadings, if such is desired, so as to clearly draw the issue upon this question.

The judgment is therefore reversed and the cause remanded to the circuit court with directions to hear testimony upon the value- of the land in dispute at the date of the sale, and to confine such new trial to that issue alone, and after having determined such value to then enter up judgment in accordance with the facts heretofore found and then found upon this issue.

Bond, J., having been of counsel, did not sit.


source: Caselaw Access Project

author: LAMM, C. J.

license: Public Domain

text:
    MARY ROLLISON, Appellant, v. WABASH RAILROAD COMPANY.
    In Banc,
    November 24, 1913.
    1. NEGLIGENCE: Country Crossing: Duty of Railroad. In applying the law of negligence relating to statutory signals at public road crossings outside of cities, the duty of the railroad company is performed when it provides a hell on its locomotive, rings it eighty rods from the crossing and then keeps it ringing until the locomotive has crossed the public road; or a steam whistle on such locomotive must be sounded at least eighty rods from the crossing and thereafter sounded at intervals until the locomotive has crossed the public road. The company can do one. or the other; it is not required to. do both.
    2. -: -: -: To do Both; Humanitarian Rule. The rule, shifting and measured by circumstance,- is that it is the duty of the railroad company, whose train is about to cross a public road outside of a city, to alarm with a whistle, when the stroke of the bell is plainly ineffective to arrest the attention of a person who has (negligently or not) put himself in peril, of which he is apparently unconscious and of which the driver of the locomotive is conscious;, that duty is, under such circumstances, an essential part of due care and of the humanity rule. But even then plaintiff can recover only by showing defendant was negligent in not giving timely warning by whistle. And the bell being kept ringing for eighty rods from the crossing, if the evidence shows that the engineer gave the whistle alarm as soon as his eye saw and his mind" could conceive the situation and his hand grasp the whistle throttle, there is no case for the jury, however rapid the train w^s running.
    3. -: Contradicting One’s Own Witness: Engineer. A party who puts a witness on the stand and thereby vouches for his credibility, is not so far bound by his testimony to this or that fact that he may not show one-or the other to be different by other witnesses — not to impeach his own witness, but to establish the truth. But unless there is substantial evidence from other witnesses that he, the sole eyewitness who saw all that occurred, was mistaken in fact, and plaintiff must show he was mistaken or have no case for the jury, then a demurrer to his case must be sustained.
    4. -: -: Humanitarian Rule: Quickly Sounding Whistle. Where plaintiff’s entire case is made to rest on an allegation that the engineer did not, as quickly as the law requires, sound the whistle of his train at a public road crossing in the country, after he had seen deceased in peril, and the uncon-tradicted evidence is that deceased arose from behind the wing fence and started for the track six feet away, and was first seen when the train, running one mile a minute, was only 175 to 200 feet from the crossing, and the engineer, who was. introduced by plaintiff, testified that he sounded the alarm whistle as quickly as he could after he saw deceased arise, there being only about two seconds of time in which to act, and there is no substantial evidence to the contrary (none by an eyewitness and only by earwitnesses to sound), a jury should not be allowed to say the engineer did not act precisely as he said he did.
    5. -: Proximate Cause: Humanitarian Rule. When a man without looking moves from a place of safety beside a railroad track, to a place of danger on the. track and immediately before an oncoming locomotive, his negligence in so doing becomes the proximate cause of his consequent injury, and hence there 'is no room for the play of the humanitarian doctrine in any of its phases or for recovery.
    Appeal from Macon Circuit Court. — Hon. Nat. M. Shelton, Judge. -
    AFFIRMED.

      Barker & Prosser for appellant.
    (1) The engineer testified that lie saw deceased in a perilous position in plenty .of time to warn him of Ms danger and that he did warn him; other witnesses testified that no warning was given; thus when defendant’s engineer admitted that he saw and realized the danger of the deceased and these witnesses testified no warning was given, the case should have been submitted to the jury. The sole question in this case is as to whether or not the same should have been submitted to the jury. The engineer testified that he saw the deceased in plenty of time to give him a warning of his. danger and that he did so. Other witnesses testified that no warning was given. The engineer’s testimony is as follows: “Q. What was this man Eollison doing when yon first saw him? A. Walking east. Q. That was toward the track? A. Toward the track. Q. What was his attitude? What did he seem to be doing? A. He did not seem to be paying any attention to anything only walking directly east. Q. When yon first saw him he seemed unconscious of the approach of the train? A. Yes, sir.” (2) First: Plaintiff’s only chance for recovery is under the humanitarian rule as laid down by this court. The phase of the rule applicable to the facts of this case has been cautiously announced by this court, as follows: “Plaintiff’s case therefore must proceed upon the theory that defendant’s servants saw the perilous position of the deceased, and saw such things as would lead prudent persons to believe that deceased was oblivious to such perilous position, and after so seeing had time to obviate and avoid the accident by ordinary care and caution upon their part. It devolved upon the plaintiff to show these facts.” Degonia v. Railroad, 224 Mo. 595. And again: “Now grant it to he true that plaintiff was guilty of gross negligence, and by such had placed himself in a perilous position, this does not relieve the defendant, if by the exercise of ordinary care it could have seen his position of peril in time to have averted the injury.” Clark v. Railroad, 242 Mo. 603. Second: The only eyewitness to the accident was the defendant’s engineer, who was offered as a witness for the plaintiff. He admits in his testimony, as will appear more fully hereafter: (a) That he saw the perilous position of the deceased; (b) that he saw the deceased was oblivious to such perilous position; and (c) that he had time to give, and did give, a short blast of the whistle as a warning signal, which, if heeded by the deceased, would have obviated and avoided the accident. Other testimony tended to show, however, that no warning signal was given by defendant’s engineer until his engine was almost immediately upon the deceased. While the plaintiff was compelled to offer defendant’s engineer as a witness, yet she was not estopped by his evidence, nor bound by it, so as to preclude her from disproving it by the testimony of other witnesses touching the same matter. McGee v. Railroad, 214 Mo. 544. The important issue in this case is Avhether or not any warning signals were timely given, after defendant’s engineer saw the perilous position of the deceased, and that he was oblivious to the approach of the train; and the vital question which now presses itself upon the consideration of this court is whether there was any evidence on the part of the plaintiff to justify the submission of this issue to the jury. Third: In the consideration of this question it is important to he noted that a demurrer admits every fact to be true which the evidence in the cause tends to prove, whether by direct testimony or by reasonable deductions to he drawn therefrom. Stauffer v. Railroad, 243 Mo. 316. (3) The engineer testifies that after seeing the deceased in a position of peril, and realizing that he was oblivious to the same, he yet had time to warn him, and did warn him with .“a short blast of the whistle,” at a point about 175 feet north of the crossing. But Dickerson, who was on the road immediately west of the track, and only nine hundred feet south of the crossing, did not hear this whistle. Lock, who was in the barn, only 150 feet west of the track and 300 feet north of the crossing, did not hear this whistle. Mrs. Elmer Rol-lison swears positively that the train did not whistle north of the crossing. And all of the last three witnesses testify positively that the “alarm signals” in evidence were not given until the engine was. at or upon the crossing. Giving to plaintiff’s evidence the favorable consideration which a demurrer thereto compels, can this court say, as a matter of law, that the engineer did give a warning signal in tinte to have averted the accident? Can it say, as a matter of law, that'this “short blast of the whistle,” if given, was a sufficient -warning under the circumstances? Can it say, as a matter of law, that the engineer exercised due care in the situation with which he was confronted? (4) “The court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant, too countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; that would clearly be usurping the province of the jury.” Buesching v. Gaslight Co., 73 Mo. 231. But let us indulge, for the moment, the hypothesis that the engineer did give such alarm in the presence of such an imperious call, and did it as quickly as he could. If we do,'then we must also indulge the hypothesis, equally reasonable, that the deceased would have heard such alarm, and hearing, would have heeded the same. For all the witnesses agree that the deceased, although hard of hearing, could have heard the whistle of an engine. And this means the accident would have been averted, because the engineer himself testified: “If he had heeded the signal, there could have been no accident.” The instinct of self-preservation becomes an element of evidence, for “natural instincts, are allowed to have their weight, and constitute evidence to men of sense.” Duteher v. Railroad, 241 Mo. 166; Stottler v. Railroad, 200 Mo. 146. Maybe, hypothesis against hypothesis setteth the matter at large. Again we call the court’s attention to the “unbending rule” that plaintiff “is entitled, on a demurrer to the evidence, to every favorable inference of fact naturally to be drawn from the evidence, and that, if the facts be disputed, the jury, and not the court, is the arbiter.” . Knorpp v. Wagner, 195 Mo. 662. This is a case where the engineer admittedly had time to save life; where the peril of the deceased was seen in time to have averted the accident, and where there was nothing to prevent timely alarm signals from being effective if they bad been given. It comes squarely within the doctrine of the humanitarian rule. Rapp v. Transit Co., 190 Mo. 161; Eppstein v. Railroad,. 197 Mo. 735; White v. Railroad, 202 Mo. 564; Zander v. Transit Co., 206 Mo. 464; Lynch v. Railroad, 208 Mo. 34; Ellis v. Railroad, 234 Mo. 671; Dutcher v. Railroad, 241 Mo. 159.

      J. L. Minnis and Guthrie & Franhlin for respondent.
    It is such negligence as precludes a recovery for a person to go upon a railroad track directly in front of an approaching train and so close as to render it impossible to stop the train in time to avoid injury. Laun v. Railroad, 216 Mo. 563; Dyrcz v. Railroad, 238 Mo. 33; Schmidt v. Railroad, 191 Mo. 215; Par-ris v. Railroad, 167 Mo. App. 392; Boyd v. Railroad, 105 Mo. 371; Moore v. Railroad, 176 Mo. 528; Holwer-son v. Railroad, 157 Mo. 148; Newton v. Railroad, 152 Mo. App. 167; Pennell v. Railroad, 153 Mo. App. 566; Stotler v. Railroad, 204 Mo. 619; Holland v. Railroad, 210 Mo. 338; Kilsea v. Railroad, 129 Mo. 362; Keele v. Railroad, 151 Mo. 364; McGee v. Railroad, 214 Mo. 530; Coldwell v. Railroad, 58 Mo. App. 453; Wand v. Railroad, 106 Mo. App. 96; Guyer v. Railroad, 174 Mo. 344,
   LAMM, C. J.

Plaintiff, widow of William Rol-lison, sues in the Macon Circuit Court for statutory damages for her husband’s alleged negligent death at a railroad crossing in the country. When her testimony is in, defendant offers an instruction in the nature of a demurrer to the evidence. The court signifies an intention to give it. Thereat she takes a non-suit “with leave” and, failing to get it set aside on motion, takes an exception and on apt and timely steps comes up.

The question here is: Was there a case for the jury! That question hinging on the pleadings and facts, attend to them.

Assuming conventional allegations, the actionable negligence is alleged to be that the servants of de- fendant in charge of one of its engines, u u ^ pulling one of its south bound passenger trains, at a crossing known as Bumpus Crossing, after seeing decedent approaching the track there and on the track (quoting) “negligently failed to give the usual and ordinary signals of the approach of said train, and after seeing, or by the exercise of ordinary care could and would have seen the dangerous position in which deceased was situated, and seeing, or by the exercise of ordinary care could and would have seen the imminent peril of deceased, and that deceased wag unaware of the near and dangerous approach of said train, negligently failed to sound the usual and ordinary danger signals in time to avert the injury complained of, and negligently failed and neglected to use the air brakes and other appliances provided for stopping said train, and negligently failed to use the appliances provided and at hand for putting said train under control and did not at any time before striking deceased ring the bell or sound the whistle, but on the contrary thereof recklessly and negligently ran its said engine and cars upon and against the plaintiff’s said husband, and the plaintiff’s said husband was then and there and thereby instantly killed; that said injury to plaintiff’s said deceased husband resulted from, and was occasioned by, the negligence, unskillfulness and criminal intent of the officers, agents, servants and employees of defendant whilst conducting and managing said train at and prior to the time it was run against and upon the body of deceased.”

The answer denied defendant’s negligence, and, in turn, charged the contributory negligence of decedent in enumerated specifications.

The reply denied new matter.

Separating the facts on which there is accord from those on which there is not, the undisputed ones fol- v*z-: Defendant’s track at Bumpus Crossing runs north and south. An east- and-west public road crosses the railroad there at right angles. That east-and-west road also presently crosses (we infer) a north-and-south public road adjacent to, west of and running parallel with the railroad at the place. As there are two crossings in question and three roads, for convenience and to avoid confusion we will call the north-and-south public road A, the east-and-west one B, the railroad crossing X, the road crossing Y and the railroad itself Z. Decedent lived east of Z and south of B, south a half quarter and east a quarter. At Y he had his rural route mail box. He was sixty-one years old, with good eyesight, but very hard of hearing, an infirmity of long standing and getting sharply worse and worse with age, but he was not so deaf he could not hear engine “alarm signals.” At X the roadbed of Z was elevated about two feet. At both X and Y, a man standing upright could, plainly and without break in sight, if he looked, see a train approaching from the north (or south) for, say, one mile. Decedent had long lived there and was familiar with the running time of the train that struck him. At X there is on the north a wing-fence of the usual height, but not- so high as to hide a man standing upright. The town of La Plata is south of X about a mile and a half and both A and Z run to that town. Of a winter’s day (January 21, 1909, at 9 a. m.) a neighbor of decedent, Dickerson, was driving a work team to a spring wagon going south on A to La Plata. When he got to Y he stopped and got out to read a sale bill posted there, and decedent came up on foot to get his mail from his box. The two neighbors, chance met, chatted awhile and then Dickerson went his way south on A. Decedent got his mail, some papers, and the nest seen of him he was arising on the south side of said wing-fence, having been apparently stooped down there. At that time he was in B and about six feet from the rails at X and headed east that way. At that very time a regular southbound passenger train a little late and running fast, say? a mile a minute, was within .200 or 175 feet of X. Its engine was equipped with an automatic bell which was sounding at the time and had been for the statutory distance. The customary crossing whistles had been given at the whistling post north of X. The engineer first saw decedent as he arose from behind the fence, as stated, and at once was advised by his conduct that he aimed to go right on across the track at X. It is undisputed that alarm whistles were sounded, but, as it is contended by appellant’s counsel they were not given as soon as they might have been, and contra, by respondent’s, that they were, the facts on that controversy will come out presently in due course when we reach disputed ones. It is undisputed that if decedent had looked he could have seen a train, as said, for a mile while talking with Dickerson, and at any point between X and Y; that if the alarm whistle had blown when he was six feet from the track (and he had heard it) he still had time and space to save himself. But that, turning his head or glance neither to the right nor left and apparently unconscious of danger and preoccupied with his own thoughts, he pursued his way for a few steps and was instantly struck and killed as he reached the nearest rail at X, the train coming to a stop about a quarter of a mile to the south. So far as this record discloses no eye saw him alive after he parted from Dickerson, save the engineer’s and he was a witness for plaintiff. The engineer testified, and there is no con-tervailing testimony, that he was at his post of duty and on the alert outlook, that he caught his first glimpse of decedent as he arose from behind the wing-fence about sis feet from the track and 175 or 200 feet, on his estimate, from the on-coming engine.

So much for facts conceded as standing unim-peached.

We now come to some other testimony of plaintiff, which, it is argued by her learned attorneys, shows there was negligence in giving alarm whistles, or rather from which a legitimate inference springs to that effect. As said, plaintiff put the engineer on the stand and from him and other witnesses established the foregoing facts. The engineer testified that the instant his eye fell on decedent and he grasped the situation, viz., that decedent was bent on crossing, he gave alarm signals by blowing his whistle in three or four sharp, short blasts to no avail. He whistled- as quick as he could. But from three other witnesses, it is claimed, testimony was elicited tending to show negligence in the foregoing particular.

Here it is: Dickerson testified that after leaving decedent at T he drove south on A in his spring wagon on a muddy road in a trot for 900 feet, at which point he heard shrill alarm whistles behind him and then turned his head, looked north and saw decedent’s body in the air. That he turned as quick as he could, “just like any one when he heard a quick sound that way.” Decedent’s body was in the air ahead of the engine on the south side of X. (Note: The mail box was on the north side-of-B which would bring any one traveling east along there close to the wing-fence, as decedent did, on the north side of X.) The alarm whistles causing witness to turn his head and look back were in quick succession.

Another witness-, Lock, was in a barn currying a team of horses. As it was winter, absent testimony on the point (as here) we will assume the doors were shut. This barn was about 300 feet north and 150 feet west of X. He heard, but did not see, the train pass the barn going south. He heard alarm whistles right after the train passed, and, judging alone from the sounds, he located them at X. “I would say,” said witness, “it was right at the crossing . . . the north cattle guard.” The cattle guard is about ten feet north of the wagon crossing. Witness then came out of the' barn and when he first saw the train it had stopped after running down south of X about a quarter of a mile. Witness had paid no attention to the train till he heard the alarm signals. In going to the barn door to look out, as he had to, he traveled about thirty feet and when he got to where he had a view of it, the train was at a standstill.

Mrs. Rollison, a daughter-in-law of decedent and living with him in his house, situate, as said, east a quarter and south a half-quarter from X, testified with uncommon candor and naivety, to this effect: It being a cool morning the house was shut up. She had been assembling her husband’s shaving material for his use and was looking out of a north window for several minutes (fifteen or twenty) when her eye lit on the train (evidently cross-lots to the northwest). It was then, in her judgment, seventy-five or eighty feet from X. She heard no signals until, she thinks, it got to X "when she heard three or four alarm whistles. There was not any whistle before that. She did not, however, see the train go on the crossing. It may be well to give some of her testimony in chief at this point, as it fell from her lips, thus:

“Q. About what distance did yon see the train cover — about how far from the crossing when you first saw the train? A. Well, I should judge seventy-five or eighty feet from the crossing when I first noticed it.
“Q. And then how far did you see it or was it just a glance ? A. No; I was looking right at the train. I first glanced there, then I could see it until it got almost on the crossing, just approaching the crossing.
“Q. You may tell the jury if at the time you saw it, if any signals were given by the train? A. What do you mean?
“Q. When you saw it? .... . A. No, sir; there was not any whistle; I saw the train. . . .
“Q. How far is the Rollison house at which you were staying from this railroad crossing? A. A quarr ter of a mile east and a half a quarter south, I think.
“Q. You may tell the jury if you had a clear view of the track? A. ■ Yes, sir.
“Q. Tell the jury why you did not see the train go on the crossing? A. Well, I would have had to have turned to have seen the train go on the crossing. I did not turn, I looked straight ahead, did not turn enough to see it.”

There was no obstruction to sight between the house and X. Witness from her north window could have seen the train clear to the whistling post, in fact for a mile, had she been looking for it, but it fell under her eye about seventy-five or eighty feet, she thought, from X. It was, she admits, a mere estimate. She did not see decedent struck.

Such is the case.-

On that record we have no hesitation in holding-that a demurrer-to the evidence laid, hence there was no error in forcing a nonsuit or in refusing to set it aside. This because:

(a) In applying the law of negligence to accidents at public road crossings, it is settled doctrine that, barring cities, so far as statutory crossing signals are concerned (R. S. 1909, 0-1 An\ uu j ± e n \ sec. 3140) the duty of a railroad company is performed when it provides a hell on its locomotive, rings it eighty rods from the crossing and then keeps it ringing until the locomotive has crossed the public road; or a steam whistle on such locomotive must be sounded at least eighty rods from the crossing and thereafter sounded at intervals until the locomotive has crossed the road. . Observe, by the very words of the statute, the company can do one or the other. It need not do both. So we have always held. [Terry v. Railroad, 89 Mo. 586.] If, then, appellant had counted in her petition on the negligent pretermission of statutory signals, which she did not do we think, she would have no case on that view, because her testimony shows there was no lapse in statutory duty, at least in bell ringing. By the same token, a fortiori, had she no such case when, it seems, she did not sue on that theory.

(b) Take another phase in the application of the law of negligence to crossing accidents, to-wit, that of the train’s stopping or slacking its speed in order to save an exposed person from death or injury. It is no longer necessary to cite authority for Pr°P°sition that a person is exposed to imminent peril on a street or at a public crossing, then those who control the threatening on-coming instrumentality, and who see him or who by due care might see him in danger, must*'use due care to avert his injury by stopping if stopping is possible with the means at hand and safely usable. The master voice of humanity cries out for so much as that and the law, an invention for the welfare of man, knows its master’s voice and heeds it. It, however, is evident plaintiff’s case cannot prosper on that theory. Trains may be run in the country, away from congested populations, at any-practicable rate of speed, absent statutory regulation, as in this State. [McGee v. Railroad, 214 Mo. 1. c. 541; Burge v. Railroad, 244 Mo. 1. c. 103, and cases cited.] It follows that speed rate, under such circumstances, may not become negligence per se or at all and only assumes material value on the question of stopping or slacking wholly or partially. Now, in this case, at a speed of a mile a minute, this train ran eighty-eight feet per second, and in two seconds would cover the 175 feet the engine was distant from X when decedent was sis feet away from the danger zone. Assuming decedent intended to cross, no mortal power could have stopped or slackened the speed of that train in time or td a distance adequate to save his life. Indeed, appellant if she did allege it in her petition did not attempt to prove negligence in that behalf, as we gather. Accordingly the case could not have been submitted to the jury on that theory.

(c) But stopping, or rather inability to stop, did not measure the full duty of respondent to decedent. It owed him the duty to warn him, to tell him it proposed instantly to occupy with its ponderous death- dealing machine the identical spot its servariU the engineer, saw he was heading to (a fact known to the engineer and not known to decedent). That machine was equipped with bell and whistle for that identical purpose. Defendant concededly used the bell. Did it also in the imminence of the crisis use the whistle diligently? It may be laid down as the rule in this jurisdiction, that, shifting and measured by circumstance, the duty to alarm with the whistle, when the monotonous stroke of the bell is plainly ineffective, as here, to arrest the attention of a person who has (negligently or not) put himself in peril, of which he is apparently unconscious and of which the driver of the locomotive is conscious, is an essential part and parcel of due care and of the humanity rule. [Eppstein v. Railroad, 197 Mo. 1. c. 735; Reyburn v. Railroad, 187 Mo. 1. c. 573-4; Dutcher v. Railroad, 241 Mo. 137.]

But that rule does not aid appellant an iota. Her case being fatally dogged and handicapped, as it is, by the unmistakable and singular negligence of her unfortunate husband in going upon a live railroad track with a train due and without the slightest precaution against danger, where, being deaf (a thing he knew and which the engineer did not know) he was under the spur of the sharper instinctive duty to uf,<í his eyes, Ms. widow conld only recover by carrying the burden of showing defendant’s negligence in one particular, viz., in not giving timely warning by whistle ;• for defendant, on this record, came up to high watermark in duty in all other respects and we think it did in that also.

Let us look ti that. It is admitted by appellant that if the engineer’s testimony is to be believed there is no case at all for the jury; for he says he gave the whistle alarm as soon as his eye saw and his mind could conceive the situation and his hand grasp the whistle throttle.

Counsel, in this predicament, invoke the rule, to-wit, that the party who puts a witness on the stand and by that act vouches for his credibility is not so far forth bound by his testimony to this or ^at ^aef that he may not show one or the other to be different by other witnesses — not to impeach his own witness, but to establish the truth. There is a working rule of that kind. [Phelan v. Paving Co., 227 Mo. 1. c. 711, and cases cited.] But that rule does not solve the riddle put up to us in the instant case. There is left, to do that, the answrer to the one narrow and blunt question: Was there any substantial evidence from other witnesses that the sole eyewitness on the ground, who saw" all and whose act is to be judged, was mistaken in fact when he said he acted as quickly as he could after he saw decedent arise and start to his death?

It would be, I think, to shock the conscience common to all mankind to indulge the hypothesis, absent proof, that the engineer would not give such alarm in the presence of such an imperious call and do it as quickly as he could. He had only two seconds in which to act and we think, on the record brought here and _ confining our ruling to the very case in judgment, that a jury should not be allowed to say he did not act precisely as he said he did. Because:

Assuming, as we are glad to do, that the natural instincts of the engineer would be to do exactly what he says he did (whereby does not na- ** \ ture itself fortify his-testimony*?), we have, as against that, the mere conclusion of earwit-nesses that he did not — earwitnesses to sound and who did not in the least qualify in that regard — a fatal infirmity withal. [Campbell v. Railroad, 175 Mo. 1. c. 177 et seq.] Not one of them saw the engine at the immediate time it whistled. Dickerson first 'heard the whistles and then turned his head to look back. As we have weasels and tortoises in ferae naturae, so one man is nervous and quick in movement; another, slow and phlegmatic. How was Dickerson at the spot where that shoe pinches*? "When we are dealing with seconds and few at that, as here, an answer to that inquiry might be vital; for all philosophers admit that “men are not obligingly built along simple and uniform lines” in that respect. Moreover, how much of those two seconds the engineer had to act in passed while Dickerson was (1) hearing, next (2) apprehending and then (3) turning? When he did finally see, he saw decedent in the air, and he thinks across the roadway at S. How long had he been in the air ? From what he heard in whistling (we presume thereby locating in his mind the spot the sound originated) and from the time he used in turning his head, he infers the whistles were given about at the cattle guard and not 175 feet north, as the engineer said. It is on such unsubstantial and elusive premise his conclusion is drawn. That inference is worthless, or, to put it milder (hence, better) it is impossible in the nature of things to say it has any probative force. It would depend on unknown factors, to-wit, on the accuracy of ■ Dickerson’s guess at the speed of a train he had not up to that time seen,' on the time it took him to hear and think and turn, on Ms memory of Ms ear-location of tlie place, of the origin of the sound as compared with the location of the locomotive when his eye came to his aid, on his expertness in locating sounds and judging distance therefrom. If Dickerson turned, as he says he did, after hearing three or four short blasts, it is material to know what increment of time passed during those ■blasts and how far the engine ran during'those blasts'? If it be said we are dealing in refinements, the answer is: So must appellant’s learned counsel deal in refinements to fasten liability on defendant, and, may be, refinement against refinement (like estoppel against estoppel) “setteth the matter at large.” To predicate negligence on two seconds of time is in and of itself a monumental refinement. We cannot adjudicate negligence on such pulse beats and hairsplitting, •such airy nothings of surmise. It will be time enough for courts to undertake to do that when they are able to do what one Samuel Butler, nigh unto three hundred years ago, said his hero (?) did, viz.:

“He could distinguish and divide A hair ‘twixt south and southwest side.
For he by geometric scale Could take the size of pots of ale.
And wisely tell what hour o ’ the day The clock does strike by algebra.”

What is said of Dickerson’s testimony is true in a greater degree of Lock’s; for he saw nothing at all. He merely heard the noise of a train going by the barn and afterward heard the alarm whistles. He then undertook to calculate and form a concept of where it was when it whistled — this, apparently, by running back in his mind and remembering the time that had elapsed since he heard the train go by. By that precarious process, in a nice calculation, involving an instant of time, short space and great speed, lie, too, concluded it was right at the crossing and not 175 feet away when it whistled. Now, it is too plain for cavil that the soundness of that conclusion on sound depended on the speed of the train, an unknown factor to him at that time, or at any time.

The-witness, Mrs. Bollison, thinks she saw the train when it was seventy-five or eighty feet from X. She was looking fixedly through a window in one line and casually saw a train coming into (and then going out of) her line of vision, at an angle towards that line and stiffly over a quarter of a mile away. That she considered the incident listlessly is clear enough; for she did not turn her head far enough to follow the train, or see X at all. True she finally heard the whistles and was permitted to tell, from that sound as a sole factor, -that it was at X instead of 175 feet from X. The value of her estimate depended also on factors unknown to her, viz., the real distance of X from where she casually saw the train, and, next the speed of the train, a thing she knew nothing about. To hazard a guess on how far it went after she saw it until she heard the alarm whistles, without knowing its speed, would he idle. Not to allow for the appreciable time it took for the sound to carry from the engine to her ear, would be unscientific; for, as said, we are dealing with seconds in order to transfer $10,000 from the pocket of A to the pocket of B— a delicate function.

The trial court did not see in all the foregoing such contradiction of . the positive evidence of plaintiff’s witness, the engineer, as called into play the decision of the triers of fact. Neither do we. There was, then, no substantial evidence of respondent’s negligence, and, failing in that, no case.

Furthermore, the case on the facts is also brought within the rule of the law of negligence, to-wit, that when a man without looking moves from a place of safety beside a railroad track to a place of danger on the track, and immediately before a coming locomotive, then, in the eye of the law, his negligence in so doing becomes the proximate cause of his consequent hurts, hence there is no room for the play of the humanity doctrine in any of its phases or for recovery. [Dyrcz v. Railroad, 238 Mo. 1. c. 47; Schmidt v. Railroad, 191 Mo. 215; Stotler v. Railroad, 204 Mo. 619; Burge v. Railroad, 244 Mo. 76; Watson v. Railroad, 133 Mo. 1. c. 250 et seq.]

If, as has been wisely said by a great authority on the philosophy of the law, “Law is beneficence acting by rule,” then courts must conform to established rules in order that law be beneficent. We best adhere to established rules in negligence cases in holding as announced.

Look at it as we may, if that sympathy for the widow, which we confess, is not to quite run away with reason, the judgment was right. Let it be affirmed. It is so ordered.

Woodson, Graves, Brown, Walker and Paris, JJ., concur. Bond, J., dissents.