ON REHEARING. Plaintiff's action was instituted to recover damages for personal injury and for destruction of his automobile occasioned by a collision with one of defendant's trains at a street crossing in the city of Kirksville. The verdict and judgment were for the defendant and plaintiff duly prosecuted this appeal.
The petition is based on the humanitarian rule and the action is prosecuted as a case falling under that rule. But we find the instructions given for defendant are drawn as if the case was an ordinary one where negligence on plaintiff's part — contributory negligence — would prevent his recovery. This cuts out the foundation of plaintiff's action, viz, that though he was negligent and was oblivious to his danger, defendant knew it in time to have avoided injuring him. Defendants instructions, Nos. 4 and 5, in terms declare that if plaintiff was negligent — was not in the exercise of due care — the verdict should be for defendant. Instructions Nos. 3, 2 and 1 are along the same line and they too ignore plaintiff's case.
But if it be true, as claimed by defendant, that plaintiff's own testimony, given in his own behalf, shows that, as a matter of law, he has no case under the humanitarian rule, this error is of no consequence.
In its motion for rehearing, defendant finds fault with some statements of facts made in the original opinion. On re-examination we find there is no mis-statement of the essential facts which tend to make a prima-facie case for plaintiff. He testified that as he approached the track at the crossing obstructions to his view prevented him seeing the train until he was within ten or fifteen feet of the track and that at the same distance defendants servants could have seen him, the train being sixty or seventy yards away coming at a speed of thirty miles per hour, and in this situation defendants servants made no effort to stop the train, or to slacken the speed. It does not meet the question *Page 17 to say that no rate of speed is negligence per se, for the ordinance fixed the rate at not exceeding seven miles per hour.
Again, it does not affect plaintiff's case to quote that general statement in humanitarian cases, to the effect that defendant was only bound to begin an endeavor to avoid a collision after the servants saw plaintiff's peril and that after that time defendant could not stop. As stated in the foregoing opinion all that may be eliminated, and we have the case stated in that opinion and supported by the authorities therein cited. We are are satisfied both with the reasoning in the opinion and the result reached.
Defendant has cited us to a number of cases, principal among them is Schmidt v. Railroad, 191 Mo. 215, and Stotler v. Railroad, 204 Mo. 619. Those cases are unlike this. They were ordinary cases of negligence and contributory negligence and are not founded on the humanitarian rule.
We think the judgment should be reversed and cause remanded. All concur.