ON REHEARING.
ELLISON, J.— A rehearing was granted in this case and we are satisfied that under the later rulings of the Supreme and appellate courts of the State the plaintiff is entitled to have his cause submitted for a verdict on the facts as they may be believed to be. The law is that although the injury is inflicted at a public crossing the defendant is liable, either where its servants saw the cattle upon or approaching the crossing in time to have safely stopped the train, or where, in the use of due care and outlook, they might have seen them in time. [Hill v. Railroad, 49 Mo. App. 520; approved and adopted by the Supreme Court in 121 Mo. 477; Spencer v. Railroad, 90 Mo. App. 91; Beall v. Railroad, 97 Mo. App. 111.]
The Hill case was certified to the Supreme Court by the St. Louis Court of Appeals on the suggestion of Judge Thompson on the ground that it was in conflict with Welch v. Railroad, 20 Mo. App. 477, and Hoffman v. Railroad, 24 Mo. App. 546, decided by this court. Why the latter case was thought to be in conflict we cannot discern. In that ease the stock got upon the track through an open gate leading to a farm crossing and, as stated by Judge Hall, “at a point where the defendant was not required to anticipate the presence of live stock. ’ ’
*615Under the statute as it now reads (differing from what it was in Revised Statutes 1879, sec. 806) the plaintiff makes a prima facie case when he shows that his animals were killed or injured by a railway train at a public crossing and that the bell was not rung, or the whistle not sounded, as required by the statute. It then devolves upon defendant in order to exculpate itself to show that the failure to do so was not the cause of the injury; unless, of course, plaintiff’s own evidence discloses that fact. [R. S. 1899, sec. 1102; Crumpley v. Railroad, 111 Mo. 152; Lloyd v. Railroad, 128 Mo. 595.] The statute reads that when one has suffered damage by an engine injuring or killing his stock, upon which engine “the bell shall not be rung or the whistle sounded,” he may recover such damage of the railway company, unless such company shows that the failure to do so was not the cause of the injury; or, as just stated, it so appear in plaintiff’s testimony.
We think it was prejudicial to plaintiff to compel him to elect at the opening of the trial on which count he would proceed. He did not intermingle several causes of action in one count.
The judgment is reversed and cause remanded.
All concur.