On Motion for Re-hearing.
EllisoN, J.We are earnestly urged to re-hear this case, on the ground that the opinion rendered asserts untenable propositions in cases of - this nature, and that it is not in line with recognized authority on such subjects.
It has been an uncontroverted rule, in this state, since the case of Thompson v. Railroad (51 Mo. 190), that a plaintiff need not allegó, as part of his complaint, that he was, at the time of his injury, in the exercise of ordinary care, or that he was not guilty of contributory negligence. The presumption is with the plaintiff, and the burden with the defendant in this regard. So, it has been repeatedly ruled, in keeping with this proposi tion, that if contributory negligence is to be ruled upon it must be pleaded by defendant in order to avail him.
In addition to authorities, in original opinion, see,, Lloyd v. Railroad (53 Mo. 509); Buesching v. Gas Light Co. (73 Mo. 219); Crane v. Railroad (87 Mo. 588); Petty v. Railroad (88 Mo. 306). It was not stated in the original opinion, nor do we now say that plaintiff may recover if his own case shows contributory negligence, even though it is not pleaded. We expressly recognized the authority of Milburn v. Railroad (86 Mo. 104).
Under the peculiar facts developed in this case, we think the question of contributory negligence was prop*343erly left for the determination of the jury. The facts do not present such a case as will justify us, as a matter of law, to say the plaintiff was at fault. Defendant had contracted to carry him to LaMonte, and stop sufficient time for him to alight there. Defendant was in the habit of carrying passengers to that point on this train; it had carried plaintiff before. This time plaintiff was in sore need of stopping, • he had left his family sick, and his attention was needed. Defendant, to suit its own convenience, without caring for plaintiff’s situation, refused to stop the train, -but slowed up to the pace of the ordinary trotting of, a horse and buggy. Plaintiff felt that he should not be carried to the next station, where he would be compelled to remain over’ night, and stepped 'from • the train. His was hot a wanton and causeless act committed by an indifferent person. While he had cause for his anxiety to get off, and while it was his right to be put off at that point, yet these would not justify him in reckless conduct. He must act as an ordinarily prudent and careful man would under similar circumstances, ánd whether he did so act, under the circumstances, was properly left to the jury. “That there was more hazard in leaving a car while in motion, although moving ever so slowly, than when it is at rest, is self-evident. But whether it is imprudent and careless to make this attempt depends upon circumstances ; and where a party, by the wrongful act of another, has been placed'in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for the jury, whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.” Filler v. Railroad, 49 N. Y. 47. That case was cited with approval in Wyatt v. Railroad (55 Mo. 490).
The case of Railroad v. Randolph (53 Ill. 510), with the exception that the plaintiff was told by a ibrakeman that he might get off, is a much stronger case *344than this. Plaintiff purchased a ticket and hoarded a “through freight train” which did not stop at the station at which he wished to alight. As -the train approached the station it “was running slowly;” the conductor informed plaintiff that it would not stop. Plaintiff then went out on the platform and ‘ ‘ leaped from the train,” yet the question of contributory negligence was submitted to the jury.
The motion is overruled.