ON REHEARING. At the time of the delivery of the foregoing opinion the Supreme Court had not handed down its opinion in the case of State ex rel. United Railways of St. Louis v. Reynolds, 213 S.W. 782, overruling the cases cited in the original opinion herein in support of the statement made therein that this court was without power to consider the alleged errors complained of in the instructions given for plaintiff, for the reason that the assignment of error, wherein plaintiff's instructions were mentioned in the motion for new trial, was not sufficiently definite to preserve the question so that it might be raised in this court. The motion for a rehearing was sustained on occount of the said action of the Supreme Court in the case of United Railways v. Reynolds, supra, and for no other reason. However, upon further consideration of the case we adhere to the foregoing opinion of TRIMBLE, J., handed down when the case was originally submitted.
The only instruction of plaintiff that defendant complains of is plaintiff's instruction No. 1, which reads as follows:
"The court instructs the jury that if you find and believe from the evidence that the defendant operates a system of electric railways between Kansas City Mo., and north Kansas City in Clay County, Missouri, and that said system of electric railways runs over the bridge known as the Armour-Swift-Burlington Bridge between Kansas City, Missouri, and North Kansas City, Missouri, and that upon said bridge are *Page 389 streets for vehicle traffic much used by the public for ordinary purposes, if you so find, and if you further find and believe from the evidence that on or about the 26th day of July 1917, the plaintiff was the owner of the automobile mentioned in evidence and that said automobile was at said time being driven and operated upon and over said bridge by R.L. Sethman, if you so find, and that at said time and place the said automobile was driven and operated onto the railway tracks used by the defendant on said bridge and in a position of peril and danger because of the approach of the street car mentioned in evidence, if you so find, and if you further find that the driver of said automobile was oblivious to the peril and danger because of the approach of said street car upon said tracks, and if you further find that the defendant, through its agents, servants and employees, operating said car upon said track at said time and place knew or by the exercise of ordinary care could have known of the perilous situation of plaintiff's said auto and that plaintiff's driver was unaware of said danger, if you so find, in time to have enabled said agents, servants and employees of defendant thereafter, by the exercise of ordinary care and with due regard to the safety of the passengers on said car, to have stopped said car or slackened the speed thereof, and to have thereby avoided striking and injuring plaintiff's said automobile, and negligently failed to do so, if you so find, and that by reason of such failure to stop said car or slacken the speed thereof, plaintiff's said automobile was struck and injured, then your verdict must be for the plaintiff and against the defendant, and this even though you believe the plaintiff to have been guilty of negligence in getting into such situation of peril."
It is contended that the instruction is erroneous by reason of the latter part thereof, to-wit, "then your verdict must be for the plaintiff and against the defendant and this even though you believe the plaintiff *Page 390 to have been guilty of negligence in getting into such situation of peril." This form of instruction in a last chance case has been so long approved that the instruction is no longer open to question or attack. [Kinlen v. Railroad, 216 Mo. 145, 160, 161, 162; Mather v. Railroad, 166 Mo. App. 145, 150; Strother v. Dunham, 193 S.W. 882, 885, 886.]
The judgment is affirmed. All concur.