*674 On rehearing.
Ellison, J.—Onrehearing of this cause, it is argued that though contributory negligence was not pleaded, and though plaintiff ’ s evidence did not clearly show contributory negligence on the part of his wife, so as to justify the court in taking the case from the jury under the authority of the Milburn case, 86 Mo. 104; yet if the evidence on the part, of plaintiff tended to show such contributory negligence, it became an issue which should have been submitted to the jury.
This proposition has been presented by the distinguished counsel for the defendant' with ability and evident earnestness, but, in my view, we are relieved from passing on the question by the fact that there is no evidence in the case on the part of plaintiff (and it is conceded that such evidence must appear in the testimony for plaintiff), either proving or tending to prove, contributory negligence.
Dr. McConnell, on cross-examination, stated'that he was familiar with the crossing and found no difficulty in driving over in a buggy, day or night; that he had never driven a wagon over, and that a wagon, being longer-coupled, would be more difficult to get over. He added, “I think I. could drive,a wagon over it, but I never tried to do it.”
Another witness stated that if a person was well acquainted with the crossing he could drive an ordinary farm-wagon over safely, but if he was a. stranger he thought he could not. “Buggies and short-coupled vehicles are not so dangerous.” Plaintiff’s witnesses unite .in saying, that the crossing was only safe for those who were acquainted with its peculiar condition and that one not acquainted with it is apt to go off, or turn over, or get hurt, or some equivalent expression. While they say there is no danger if you keep. the wagon in the track, they, at the same time, say, one unfamiliar with the crossing is not apt to do this, as in order to do so, *675you must pull the horses sharply, out of the track on 'account of the turn, and that this condition of the .crossing cannot be discovered by one going up' the east ..approach. “ A person cannot see the west approach from the east until on the railroad track.”
But, as I discussed the evidence somewhat in detail in the original opinion, I will not pursue the matter further now, and am in favor of affirming the judgment.
Philips, P. J., and Hall, J., concur in a separate opinion.