DISSENTING OPINION
FARRINGTON, J.Suit for personal injuries. Verdict for $8000. A remittitur of $501. Judgment for $7499 against the defendant, which brings its appeal to this court.
There are numerous errors assigned by the appellant, none of which are necessary to consider in this opinion except that based on the refusal of the trial court to give a peremptory instruction which defendant requested on the theory that the case made by all the evidence shows that plaintiff’s injuries were the direct result of controbutory negligence on his part'so palpable as to constitute negligence in law and bar a recovery.'
*457For the purpose of the discussion of this point, it is deemed necessary to briefly state the facts bearing upon it. Plaintiff, between ten and eleven o’clock in the forenoon, was riding a motorcycle toward the east along a public highway which'crossed defendant’s double-track interurban electric car line. He had been over this crossing a number of times and was acquainted with the surroundings, but the time in question was the first occasion on which he crossed it on a motorcycle. He was forty-eight years of age, in good physical condition, and possessed of all his faculties and organs of sense except that he was blind in his left eye. The defendant’s tracks at this crossing run practically north and south, and the road on which plaintiff was traveling crossed the tracks east and west. There was a public road running north and south on the east side of defendant’s tracks, and it was plaintiff’s intention to cross the tracks and turn south on this road. The east and west road, after crossing the tracks, diverged north fifty to seventy-five feet before again turning east. Some five or six hundred feet north of the crossing, defendant’s track come through a cut. On the west side of the tracks, and on the north side of the road on which plaintiff was traveling toward the crossing, is a cemetery around a part of which is a stone wall four or five feet high, where there were trees and vines and shrubbery, which, according to plaintiff’s testimony — and this we must believe for the purpose of the discussion of this question —obstructed the view of the defendant’s tracks north of the crossing until the plaintiff reached a point fifty feet west of the crossing. The undisputed testimony is that immediately upon coming out from behind this stone wall of the cemetery plaintiff looked to the north, and testimony offered by the plaintiff goes to show that from this point on the highway the view to the north would not take in more than two hundred of two hundred and thirty or forty feet of defendant’s *458tracks. While there are some objections that the plat which was offered in evidence did not disclose the condition that existed at the time the collision with reference to foliage and other obstructions, still the plaintiff’s witnesses' admitted that the plat generally disclosed the true situation. Plaintiff testified that the roacl he was traveling was down grade toward the railroad crossing until a point was reached about seventy-five or one hundred feet from the tracks where the roadway became level and thus approached the crossing, lie stated that for some distance before reaching this level place he had been running at a speed of probably eight or ten miles an hour, but that as he came down the hill to the level place he cut out his spark and coasted to the crossing, and that when he reached a point fifty feet from the tracks where he could look two hundred and thirty or forty feet north and from which point he says he did look (which, by the way, was the only time he looked toward the north), he was going at a speed which he estimated at from four to four and one.-half miles an hour, with the power off. He testified that after he glanced toward the north and saw no car approaching, he then glanced toward the south which was entirely open and where the tracks could be seen for a long distance and saw no car approaching from that direction; that having looked in both directions, he was next upon the railroad track and was struck by a southbound car. He was unconscious for several days, and the injuries suffered from the collision were of such a serious nature as to justify his recovery of the amount of the judgment if the defendant is liable.
It is uncontroverted in this case that as plaintiff neared the tracks, after having passed the fifty foot point where he says he looked toward the north, the scope of his vision in that direction up the tracks became wider and longer, and, at a point twenty-five feet from the track on which he was struck, he could have *459seen to tlie nortli to tlie top of tlie liill or a distance of probably five hundred or six hundred feet, because that brought him far enough east to see beyond the north part of the stone wall and beyond all obstructions to the north — which would enable him to see to the top of the hill.
The testimony as to the rate of speed defendant’s car wras running is variously estimated at from twenty-five to thirty-five miles an hour; and it will be taken as conceded that defendant in running its car at this place — which was just within the limits of Webb City — much in excess of the rate of speed fixed by the city ordinance, was guilty of negligence. The defendant’s car was running seven or eight times as fast as the plaintiff’s motorcycle according to plaintiff’s own testimony. This being true, it will be readily seen that it would be a physical impossibility for the car, traveling at that rate of speed, to have been within two hundred or two hundred and thirty or forty feet of the crossing when plaintiff glanced toward the north at the point fifty feet from the crossing. It is also a physical certainty that when the plaintiff reached a point twenty-five feet from the track on which he was struck, the car was at a point on defendant’s track which was plainly visible to a person looking in that direction; that car at that time must have been within one hundred and fifty to two hundred feet of the crossing, becap.se the speed the car was running, according to plaintiff’s, testimony, would bring it within that distance. Plaintiff testified that he had never been able to stop his motorcycle within a distance of ten feet; that he probably could stop it within a distance of twenty feet, but didn’t know. It will be seen that if he was going at the rate of speed which he says he was, it would have taken him some eight or nine seconds to have covered the distance from the point where he looked north to the point where the collision occurred. Tt is a mat*460ter of common.experience that during this interval of-time, a person could causally glance both north and south at least six or seven times. It is a matter of common knowledge that a person on a vehicle such as plaintiff was riding, going at so low a rate of speed— a little faster than a man walks — could in a moment step to the ground, or as quickly turn the machine to the north or south without danger. It is apparent that at a point twenty-five feet from the track, had the plaintiff looked toward the north he would have seen the car aproaching, and it is likewise apparent that at that point he was not in a place of danger, but of safety. If he failed to look for the car when it was there and while he was still in a safe place, or if he did look and see it and conclude to attempt to cross ahead of it, or if he did not have his motorcycle under proper control, he is guilty of such negligence, to my way of thinking, as to bar a recovery for the consequences. The law has been declared at numerous times and in no uncertain language that a person approaching a railroad track must exercise ordinary care for his own safety; that a railroad track, in itself, regardless of signals or warnings, by those in charge of the cars, is a constant warning of danger; and that- although the servants in the operation of the cars on the tracks run them negligently, in violation of law and a city speed ordinance, without giving the statuatory warning, still those who attempt to cross the tracks cannot put full reliance on the performance by the railroad company of its duty to properly run its ears, but must look and listen' before attempting to cross, and if, by looking and listening, the danger of collision would become apparent and thus be averted by the individual, and this precaution is not taken, the negligence is concurrent, unless the railroad company could by the exercise of ordinary care under the circumstances stop the cars and thus prevent the collision, and the plaintiff is guilty of negli*461gence per se. There is no claim that the humanitarian doctrine applies in this case. It has been often said by the court of highest authority in this state that the duty of looking and listening and of vigilance on the part of those crossing railroad tracks is a continuing one up to the very danger zone. If-this be the law, I cannot countenance the judgment in this case, where all the evidence shows that plaintiff looked to the north only once — when he was at a point where he could see but two hundred or two hundred and thirty or forty feet up the track. In other words, if looking where the full view of the tracks could not be had, at a point fifty feet from the crossing, fulfills the obligation which an individual owes himself in going over a railroad crossing, when no semblance of an excuse is offered for not looking again, the opinion of the majority of this court declares the law, hut such holding, according to my judgment, is contrary to the law as declared by the Supreme Court of this State. It will be noted that there were no obstructions to the south to attract or iinpair plaintiff’s vision. No one was coming out of the cemetery, or along the road from the east whom he would have to pass. He was on a motorcycle, coasting, with nothing to do but guide it and look and listen and care for his own safety. The record does not disclose one scintilla of evidence affording an excuse for plaintiff’s failure to look again to the north. At any place within twenty-five — twenty— fifteen — or ten feet of the track, the car was plainly visible, bearing down upon him, and a mere step to the ground or a turn of the wheel would have placed the plaintiff out of danger; but without doing this, and relying on the glance toward the north when he was some fifty feet from the tracks, the plaintiff went on. It is true, he did not know exactly how many cars came along these tracks nor how often they came, but he did know that cars frequently passed there. The fact that he was blind in his left eye would necessar*462ily cut off a portion of his vision to the .north and require the use of his other eye and his sense of hearing to a greater extent in that direction; and this at a place that required but one glance to the south where the tracks could be seen for a great distance, and where the glance to the north, when made, was obstructed beyond a point a little over two hundred feet distance. As has been said in many decisions, each case must stand on the state of facts therein presented. Probably no two accidents have ever occurred in exactly the same way or under the same circumstances. I have with great care considered the authorities cited and the argument presented by the respondent, but to my mind the facts of this case present but one conclusion, a conclusion about which there can be no difference of opinion and therefore no question for a jury. Practically all the cases cited and relied upon by the respondent, where the question of negligence was held to have been properly submitted to the jury, had some element in them as disclosed by the opinion which does not exist in the present ease. In the Woodward case, 152 Mo. App. 468, 133 S. W. 677, which is particularly relied upon, the evidence is that the injured party looked in the direction from which the train came that injured her and could see four hundred feet, and then looked in the other direction and there saw an engine, an object on which her attention would naturally center and one that would tend to hold her attention and keep her from looking in the other direction again. In' other cases cited, it appears, for example, that the headlight on the engine was not burning, or that from some other cause by looking and listening the approach of the train might not be observed. In this case there is no element or circumstance shown to have existed that would distract or tend to hold the plaintiff’s attention, no object from which he could expect danger in any other diretion, no person approaching to whom he *463owed a duty in operating his machine. All the evidence shows that had he taken the precaution to look when he could have seen and when he was yet in a place of safety he could not have helped seeing the approaching car. Respondent claims that when he looked, at the fifty foot point, where he could see two hundred or two hundred and thirty or forty feet to the north, and saw no car approaching, he could then rely upon the presumption that defendant would properly operate its cars and give the warning, and hence wras lulled into a feeling of security in a place of danger. It has been recently reiterated by the Supreme Court that presulnptions will suffice where there is no evidence to shed light on the situation, but that presumptions must fade in the light of facts and witnesses who testify and evidence the conditions. This applies equally as well to physical witnesses as to human testimony. Lulled into a feeling of security under the presumption, as he says he was at the fifty foot point, at possibly thirty-five, thirty, and surely twenty-five feet from the track, while he was yet in a place of safety, a witness appeared in plain view which dispelled and put to flight the presumption relied upon at the fifty foot point; that witness was the rapidly approaching car, a menacing’, dangerous, warning messenger, telling a reasonably prudent man in plaintiff’s position that to then attempt to cross the track meant almost certain destruction, and to know what this witness was saying the plaintiff as a reasonably prudent man had but to glance toward the north from a place of safety. This he failed to do, and for this failure no fact or circumstance or presumption is offered in this entire record as an excuse. Plaintiff’s conduct was plainly, unquestionably, negligent. This negligence directly contributed to his injury and was the proximate cause thereof. When he •was in a place of safety he could have looked, have seen, and have stopped or turned aside, and thus averted the *464collision; lie had the last chance to prevent the catastrophe if he had looked, and by failing in that particular he was guilty of contributory negligence as a matter of law, and the peremptory instruction for the defendant should have been given.
In the case of Walker v. Railroad, 193 Mo. 453, l. c. 481, 92 S. W. 83, it appears that the boys did stop and look and listen and that the train was not then in view, and that they went on without again looking-in the direction from which the train came; and the court held that where they had traveled fifty feet at a speed a little slower than the plaintiff in this case traveled, such conduct on the part of an adult would bar a recovery as a matter of law.
The majority opinion, in my judgment, is in conflict with the following decisions of the Supreme Court: Walker v. Railroad, 193 Mo. 453, 92 S. W. 83; Strotler v. Railroad, 204 Mo. 619, 103 S. W. 1; Dyrcz v. Railway Co., 238 Mo. 33, 141 S. W. 861; Laun v. Railroad, 216 Mo. 563, 116 S. W. 553; Green v. Railway Co., 192 Mo. 131, 90 S. W. 805; Schmidt v. Railroad, 191 Mo. 215, 90 S. W. 136; Sanguinette v. Railroad, 196 Mo. 467, 95 S. W. 386; Mockowik v. Railroad, 196 Mo. 550, 94 S. W. 256; Porter v. Railroad Co., 199 Mo. 82, 97 S. W. 880; Guyer v. Railway Co., 174 Mo. 344, 73 S. W. 584; Huggart v. Railway Co., 134 Mo. 673, 36 S. W. 220; Hayden v. Railway Co., 124 Mo. 566, 28 S. W. 74. These decisions are founded on reason and are in accord with the decisions of other courts, both state and federal, in similar cases.
Entertaining these views, I respectfully dissent from the opinion of my associates, and under the conditions as they appear to me to exist, it becomes my duty to request that this case he certified to the Supreme Court for final determination.