negligently failed to, so use the means at hand in giving alarms and checking the speed of the train as to avoid the collision. The defendant denies the allegations of negligence on its part and pleaded negligence of the deceased in going upon the crossing, a place of known danger, without taking rea- | sonable precautions in stopping, looking, and listening for the coming train. The plaintiff recovered judgment for $10,000, the full amount allowed by law, but voluntarily remitted $2,500, and thereby defendant's appeal is to this court. within 10 or 12 feet of the rail, at which time his horse would be going over the track and the train but a short distance therefrom. He could not easily hear a train running upon a track giving no signals because the sound made by the train was thrown away from him and across the valley by the hill between the track and the wagon road, and because of the fact that the wind at the time was blowing in a contrary direction. The evidence also showed that the train made very little noise. The train approaches the crossing in a cut; the wall of the cut on the right-hand side of the train going east, the side of the wagon road, was higher than any of the parts of the engine and owing to the curve to the south obstructed the engineer's view of the crossing itself until he had approached to within a distance of 440 to 460 feet of the crossing. The walls of the cut sloped backwards from the railroad; at the bottom of the cut it was 8 feet from the rail. One witness testified that at a point 25 or 30 feet back from the crossing a person could see a train only 3 to 4 rails' length, or 100 to 130 feet. Further back it could not be seen until right at the crossing. There is evidence of several witnesses that on other occasions they were along this road near the crossing and either could not hear at all, or with great difficulty heard, a train approaching the crossing as this one was. The conditions surrounding this crossing are extraordinary, making it a peculiarly dangerous one to persons approaching it from the west, as deceased was at this time, in case a train, as so happened on this occasion, should also be approaching from the west. For some distance west of the crossing, 500 feet at least, the wagon road, though only 180 feet distant from the railroad and gradually converging, is nowhere in sight of the same until right at the crossing. The wagon road is some 20 to 25 feet higher than the railroad until it starts to descend some 250 feet west of the crossing. Going down this hill the wagon road is itself in a cut for a distance of 150 to 175 feet; the deepest place being about 125 feet from the crossing where the cut is 4 or 5 feet deep. As the wagon road enters on the railroad right of way it leaves this cut and there is a distance of 25 to 40 feet nearer level, and some 10 to 12 feet of this, next to the track, is on a fill; the road there being narrow and ditches 3 to 5 feet deep at the sides. There is evidence that, after the horse is within 8 to 10 feet of the track, it would be difficult and dangerous to turn around. At a point about 15 to 25 feet west of the crossing, the wagon road veers from a due east and west course to the northeast and crosses the railroad at right angles; after crossing the railroad track the wagon road continues down the hill and veers to the southeast 300 or 400 feet, then turns north across a valley. Defendant's track from near the whistling post west of the crossing is cut in the north side of the hill until it reaches the crossing; the hill being about 25 feet high and lying between the track and the wagon road running west of the crossing above described. This hill between the railroad track and the wagon road at the time of the accident was covered by a dense growth of trees and bushes with dense foliage and growth of weeds; such hill, trees, bushes, and weeds beginning at a point 600 or 700 feet west of the crossing and continuing down to within a few feet of the crossing. Qn account of he knew the great difficulty of hearing an apthe hill and the obstructions thereon, a per-proaching train; that same could not be son approaching the crossing in the wagon seen until he was on the narrow embankment road from the direction in which plaintiff's and the horse on the first rail. husband came could not see a train coming The evidence tends to show that the engineer did not see the deceased until the engine was within 100 feet of the crossing, at which point the deceased's horse emerged from behind the embankment right at the track; that the deceased on the buggy seat could not see the train until he was within 10 feet of the track and his horse then at the rail, the buggy on this embankment, and no chance to turn around; that he applied the whip when on the track and tried to cross ahead of the engine but failed; the engine striking the hind wheels of the buggy, hurling the deceased some 100 feet or more, killing him instantly. The defendant demurred to the evidence and insists that, granting that defendant was remiss in giving the required signals on approaching the crossing, yet deceased was guilty of contributory negligence barring any recovery in that he did not stop and look and listen for a coming train before venturing onto the track. In this connection it is shown that deceased was perfectly familiar with all the surroundings and the facts we have detailed, as he had passed along this road and over this crossing almost every day for several years. It must be taken that [1, 2] It is elementary law that a railroad no one has a right to heedlessly enter on such danger relying on the persons running an approaching train to give him warning of its approach without himself taking every reasonable precaution to inform himself as to such approaching train. This is merely saying that, where both parties are negligent, no liability arises. It is always a person's duty to look and listen, when possible, before entering on a railroad crossing. When stopping is essential to make looking and listening effectual, then stopping is necessary. Wands v. Railroad, 106 Mo. App. 96, 99, 80 S. W. 18; Masterson v. Railroad, 58 Mo. App. 572, 575; Campbell v. Railroad, 175 Mo. 161, 183, 75 S. W. 86. It is said in Hook v. Railroad, 162 Mo. 569, 584, 63 S. W. 360, 363, that: * "When one cannot see a known threatened danger, as a fast-moving train approaching a crossing, that is desired to be passed by the traveler, on account of some intervening obstruction cutting off his view, the demand of common prudence is more imperative than ever that he call into requisition some other sense or faculty that may aid him in the acquisition of the desired information. * * Because of a want of a prescribed act to be performed, under all circumstances, by the traveler, approaching a railroad crossing, he is none the less bound to observe those standards of precaution which the law has declared applicable to the situation. If the standard is to look where sight is availing to give the needed information, then the traveler must look, and, failing to do so, this, as all courts have de clared, is negligence. If the sense of sight is unavailing to give the needed information, on account of the situation and surroundings, then the law has fixed another standard by which the conduct of the traveler must be measured. He must exercise the sense of hearing; if need be, he must stop and listen to ascertain if a train is approaching the crossing sufficiently near to interfere with his passing over it in safety, and, if he fails to exercise that precaution (when through the sense of hearing he might have ascertained the whereabouts of the train) and is injured, the law pronounces its condemnation on such conduct." In Kelly v. Railroad, 88 Mo. 534, 547, the law is stated thus: "We do not understand the law to be, nor do we so hold, that it is the duty of the traveler, where the highway crosses the railroad track, absolutely and always to stop, or to fasten his team and go forward on foot to a point where he can look up and down the track, but as applied and limited to the facts of this case at such crossing and at such hours when trains are passing, and liable to pass at any time, as was well known to said Coleman, we think it does require of him, where he cannot see the track, to listen, and if necessary for that purpose, on account of the noise made by his wagon, to stop and listen for the train before venturing blindly upon it. This does not, we think, exact or require any unreasonable or extraordinary prudence or precaution on the part of the traveler, but is only such prudence as a reasonable man would take for the protection of his own person and property under such circumstances. Such is, we think, the doctrine and rule declared by this court heretofore in a number of cases. Purl v. Railroad. 72 Mo. 168; Henze v. Railroad Co., 71 Mo. 636; Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484." [3] Applying the law thus declared to the facts of this case, how does it stand? There is abundant evidence to show that a closely approaching train could not be seen by deceased going towards the crossing until he was in a place from which there was no escape. To look when he was where looking was effectual was but to see the descending stroke. This he knew, and therefore must be required to use his hearing. To venture on the crossing merely because he could not see an approaching train would be negligence. He also knew the difficulty of hearing an approaching train and the reasons why such a train might not be heard, even if close enough to the crossing to threaten immediate danger. Under such circumstances, the law demanded that he use his sense of hearing, which was shown to be good, in such manner and under such conditions as would reasonably make his hearing effective in discovering the coming train. If it was necessary to stop the horse to do this, then a failure to do so is negligence. If the court can say that it is certain that the noise of the buggy, by reason of passing over a rocky road or otherwise, so impaired his hearing that the stopping of same would have enabled him to hear the train, then a failure to stop is negligence. Mere stopping, unless he could thereby hear the train, was as likely to put him in danger as to avert it. It is claimed that the evidence does not show positively that the deceased did not stop. But, granting that there is so small a possibility to the contrary that we should treat this fact as proven, we cannot say that there is a certainty that stopping would have aided his hearing. The buggy was light, and there is no proof that, in going in an ordinary walk or slow trot, the gaits proven, on a comparatively smooth dirt road, the hearing of the driver was impaired. Having thus listened and hearing no bell or whistle, which he would have heard had they been sounded, we think he might rely thereon and proceed. The evidence is conflicting as to the rockiness of the road near the crossing and the increased noise therefrom, if any. The evidence is such that it is for the jury to say whether a stopping would have made the listening more effectual so as to make a failure to do so negligence. The case is a close one, but we rule that deceased was not guilty of contributory negligence as a matter of law. [4-6] The evidence as to defendant's giving the statutory signals of whistling or ringing the bell beginning 80 rods from the crossing is conflicting. The plaintiff's evidence is negative, as, indeed, it must be in all such cases. She must prove a failure to give signals, and this can only be done by show ing by those having the ability to hear, and being in a position and condition of mind to hear and take note of the hearing, that they did not hear any signals given. The value of | to base this instruction; that the evidence such evidence depended largely on the op- fails to show that sufficient time was given portunity of the witness to have heard and after deceased's peril was discovered requir the conditions of his mind causing him to ing anything to be done which was not done take note of and remember the absence of This necessitates a further examination into any such signal. When the opportunities the facts bearing on this issue; and the imand circumstances are such as to give such portance of the case and the lengthy record negative evidence some probative force, its is our justification for doing so. weight and credibility is for the jury. There is such evidence here. The most important question to be determined in this connection is the distance, and thereby the time, intervening between the engine and the deceased or his horse when same came within the range of the engineer's vision. We assume that the engineer saw the deceased practically as soon as was possible, and so he testified. We also assume that deceased was in great danger, apparent to the engineer, as soon as he was or could be seen. The train, according to the engineer, was going 35 to 40 miles per hour, 51 to 58 feet per second; other witnesses indicate faster. If we knew the distance, we could calculate the time on this basis. If we knew the rate the horse was traveling, it would aid much in this respect. Only two witnesses, one a girl of 15 years of age and the other a woman, saw the horse and deceased as they approached the crossing. The girl was at a house at least 600 feet east of the crossing, saw the collision, and thought the horse was going in an ordinary walk. The woman, Mrs. Hemphill, was at her house 300 feet west of the Besides, it is significant that the positive evidence of some of defendant's witnesses as to the whistle being sounded at the proper distance from the crossing discloses that only two weak blasts or "toots" were given right at the whistling post, and no other signal by bell or whistle occurred until the shrill danger signals were given immediately before deceased was struck. The evidence shows a considerable interval of silence between the signals at the whistling post and those at the crossing. According to this evidence, the train ran in silence, so far as these signals are concerned, along under the hill while the deceased was incapable of seeing the train and, as will be presumed in the absence of evidence to the contrary, was listening for such signals and, lulled into security by their absence, passed on to his death. The statute requires that not only such signals be given at the whistling post, but that same be continued, continuously if by bell "and at intervals" if by whistle, until the crossing is pass-crossing, saw the deceased going down the hill, ed. It needs no argument to show that under the peculiar facts of this case, while the first blast at the distant whistling post might not have been heard by deceased by reason of being then in the cut or by the rattle of his buggy over a stony place or other cause, yet, on the smoother road and under more favorable circumstances nearer the crossing, such signals would have been heard and would have given abundant warning. We rule that the court did not err in submitting the case to the jury on this theory. heard the coming train, saw the collision, and "A. Well, as I rounded the curve at this to blow what we call the 'stock whistle' just crossing saw the horse's head and I began as fast as you can blow the whistle, and I [7-9] It is next urged that the court erred blew that whistle until the engine had about in submitting the case to the jury on the got on the crossing, Q. Now, then, when you first saw this horse's head, how near the crosshumanitarian theory by telling the jury that, ing were you? A. Well, running along on the if deceased was killed on the crossing, "then road it looked to be about 75 to 100 feet. Q. even though you may believe from the evi- How much of that horse did you see at that dence that Martin L. Underwood negligently. Well, I could see his head and part of his time when you first observed the horse's head? drove upon the railroad track, yet if you further believe from the evidence that the defendant's engineer operating said train saw, or by the exercise of reasonable care could have seen, that the said Martin L. Underwood was about to drive upon said railroad track, and was in a dangerous situation, in time to have avoided injuring him by the use of ordinary care, and with safety to himself, to the train and its passengers and persons on board thereof, and that said engineer negligently failed to do so, your verdict should be for the plaintiff." The in neck, I suppose. Q. Now just go on in your man.' says: ed his mind and began to whip him up. By the moving train, plaintiff's learned counsel that time we got by the crossing, and he got out of my sight. I was going to release my brakes, and the fireman says: 'We hit that We stopped, backed up, and picked him up and loaded him on the train. Q. Now, in coming down to that crossing, at what speed was your train running? A. Well, I had to judge it between 35 and 40 miles per hour. Q. In coming down that grade from the whistling post, state whether you were working steam or were not working steam. A. Was working. Was working a light throttle." It is insisted that the engine was further from the crossing than he supposed and testified. That is probable, as danger always looms up big and close. Thrilled with excitement, his eye and mind were not centered on measuring distance. His attention was drawn to other things, as his evidence shows. Nor could we expect him to say with mathematical accuracy just how much of the horse was visible at the first glance. But what basis is there for holding, as plaintiff insists, that the engine was then 400 feet or more from the crossing, the furthest point at which the horse's head could be seen when right over the south rail. The horse's head, when seen by the engineer, could not have been more than 8 to 10 feet from the south rail. In discussing the deceased's negligence in driving on the crossing in front of facts all show that, when Mr. Underwood had "The evidence, photographs, and physical passed the obstruction so that he could see the train, his horse was going over the track, and he himself was in a place of peril. The obstruction (the wall of the cut) at the bottom began eight feet south or west of the rail, so that his eyes had to be within 10 or 12 feet of the rail before he could see a train, at which time his horse would be going over the track." Move the horse back 10 feet and you have only his head visible. As showing the possibilities of the engineer's seeing the horse in this position, plaintiff introduced three photographs taken with a camera over the right rail, the engineer's side, at different distances west from the crossing and looking in that direction, as was the engineer. The first one is taken at a distance of 135 feet 3 seconds from the crossing, with the horse's head 10 feet 2 seconds from the south rail and showing about onehalf of the horse and the top of the umbrella over the driver's head visible, but the buggy and driver invisible behind the embankment. The next one, Exhibit B, is taken from a point 285 feet 5 seconds from the crossing, with the horse and buggy in the road and the horse's head 5 feet 1 second from the south rail. This one is reproduced here: Exhibit B Camera on South rail 285 ft. from crossing looking east toward crossing. Horse's nose is five feet from rail. The third one is taken 330 feet 6 seconds | when viewed at a distance of 600 feet. This from the crossing, with the horse's head im- same witness, with far better opportunity of mediately above the south rail at the cross-judging, guessed that the Hemphill house ing and showing only the horse's head and was 40 to 50 yards from the crossing, when neck visible. Why the horse was moved clos-it is admitted that the distance is 100 yards. er to the rail each time the camera was moved further from the crossing is left to conjecture. Her evidence is too uncertain and indefinite to furnish a substantial basis for liability based on so narrow a margin. Rollison v. RailTwo witnesses testified that on placing a road, 252 Mo. 525, 540, 160 S. W. 994; Oshorse at the crossing 5 or 6 feet 1 second from born v. Railroad, 166 S. W. 1118, 1124. The the south rail (one said his head, the other argument based thereon is likewise based on his front feet, being at this distance), and the supposition that the engine was traveling walking up the track, they could see his head at least 15 times as fast as the horse. The and neck 406 feet 8 seconds from the cross-other witness on this point, Mrs. Hemphill, ing. Beyond that the curve and bank shut who was at her home 300 feet from the crossoff the view of the horse. This is plaintiff's evidence and shows the possibilities of seeing a horse's head protruding from behind the embankment viewed from points at different distances from the crossing; the horse being nearer the rail as the distance from the crossing grows longer. It also shows the narrow range of a few feet as the horse approached the crossing; the whole range being 10 feet, on which the plaintiff builds her case. Certainly this evidence does not show where the engineer was when he could first see the horse's head coming towards the track. He could do that at any point where either photograph was taken or between those points, depending on the horse being a little further back from the rail but nowhere more than 10 to 12 feet. At the latter point the engineer would be not over 150 feet 3 seconds from the crossing. It clearly shows that the horse's head could not have been seen at a greater distance than 400 feet 8 seconds from the crossing, its head being then at the rail; and in that event 3 to 4 seconds would place the horse, buggy, and all over the track in safety. ing, says that, when she heard the train about even with, "straight across from," her house, the deceased was 70 to 75 feet from the crossing. See McCreery v. United Rys. Co., 221 Mo. 18, 27, 120 S. W. 24. But why speculate as to 1 or 2 seconds in time and 5 to 10 feet in the distance of the horse from the track? Liability cannot be predicated on so narrow a margin. The burden is on the plaintiff to prove the facts which bring the case within the rule now invoked. Engineers are human beings, and we cannot exact of them to act instantly and in the most intelligent way in cases of emergency. Liability does not arise from mere errors of judgment or failure to act instantly in such cases. Every one knows that the very necessity for instant action delays the same, and emergencies demanding quick and intelligent action breed confusion and delay. An act which ordinarily would be performed in a second, if limited to that in order to save life, often paralyzes the efforts to do so. The engineer's duties under such circumstances are complex; he must think, and that takes time. The first glance only revealed a horse, later a buggy and man. He testified as to what he did and the order of doing same, shut off the steam, sounded the alarms several times, applied the air brakes. does not state, and could hardly do so, the time it took to do each, but seconds flit by. He thinks the brakes were on by the time he reached the crossing, but does not know whether the speed had been perceptibly checked or not. The train was stopped in 1,000 to 1,200 feet. He Much has been said recently on this question by our Supreme Court, and by their decisions we are bound. Plaintiff's whole argument is based on the assumption that the engine was actually at the furthest point possible from the crossing at which the horse's head could be seen by the engineer before the horse passed over the south rail. But there is no basis for this presumption. There is no evidence showing at what point the engine was when the horse came in sight. The evidence shows mere possibilities. If, as appellant admits, the horse's head could not be seen further from the rail than 10 feet when the engine is within 200 to 250 feet of the crossing, then 4 to 5 seconds, with the engine traveling 50 to 55 feet per second and the horse 5 to 6 feet per second, would cause them to meet as they did. This supposition has some evidence to rest on. "This train would run 400 feet in 52 seconds. An argument is based on the statement of How are those mere pulse beats to be distributed between the engineer and fireman in meting the 15 year old girl, made, honestly no doubt, out praise and blame and arriving at actionafter she had insisted that she did not know able negligence? Here are the minds of two but assenting on suggestion that she thought men that must grasp an acute crisis after an inthe train was half a quarter from the cross-nently practical tribunals in getting at practerchange of intelligence. Courts being emiing when the horse and buggy were 25 feet tical and just results in the affairs of men, will therefrom. She said she was only guessing it do to chop logic and predicate actionable negat these distances, and any one knows how ligence on subtle reasoning involving metadifficult it is to deliberately estimate a dis- half a second or one or two seconds of time? physical features and covering an interval of In McGee v. Railroad, 214 Mo. 530, 543, 114 S. W. 33, 36, the court said: |