*478CONCURRING OPINION.
FARRINGTON, J.—This suit was instituted under section 5425, Revised Statute 1909, by the administrator of the estate of Aaron W. Harshaw, deceased, for the recovery of damages. Plaintiff recovered judgment for $3000 and defendant has appealed. Several assignments of error are made, but appellant in the oral argument and in its brief cast the appeal on the alleged error of the trial court in refusing to direct a verdict for it at the close of all the evidence, directing our attention, however, in the oral argument, to the case of Boyd v. Railroad which had been decided a short time before and had just been published in the advance sheets of the Southwestern Reporter (155 S. W. 13).
The acts of negligence charged in the petition are as follows: “ (1) In failing to ring the bell, or sound the whistle, as provided by section 3140, Revised Statute 1909. (2) In running the train at an unusual, rapid or dangerous rate of speed, when approaching and passing over the crossing. (3) In failing to check the speed of or stop the train when by the exercise of care those in control of the train knew, or might have known, of the perilous position of the deceased upon and near the crossing.”
There is no evidence to invoke, and it is conceded that, the humanitarian doctrine does not apply to this case.
The answer was a general denial and a plea of contributory negligence.
The undisputed facts are that on May 28, 1912, Aaron W. Harshaw, and his wife, both in apparently good health and in reasonable possession of their senses, • were driving south on a public road, or what some of the witnesses termed a street, in the unincorporated village of Bower Mills. This public road •runs north and south, and defendant’s railroad track *479crosses the road at a slight angle, running northeast and southwest. The approach to the railroad track from the north begins on 'the public road sixty-eight feet from the center of the track and gradually rises until it reaches its highest point which is, of course, the railroad track. The rise from the point sixty-eight feet north of the center of the track to that place is between eight and ten feet. Near the middle of this approach, which is sixteen feet wide, is a bridge without railing, also sixteen feet wide, and seventeen feet long. From the south end of this bridge to the center of the railroad track is about thirty feet, and the center of the railroad track is about four feet higher than the center of the top of the bridge. The approach becomes higher and higher as it nears • the railroad track, and from the ground where the water goes under the bridge to the top of the bridge is about .six or seven feet. .The approach, as it reaches the railroad track, is about ten feet high. It was shown that an ordinary team of horses walking from the sixty-eight-foot point to the railroad track will require about twenty-three seconds. Standing on the track and looking northeast up the track one can see a train practically a quarter of a mile, or from 1300 to 1400 feet- This point would be where the track turns from a northeast direction to a southeast direction, looking up the track toward where the train came from that took part in this accident. Just out of and west of this curve is located a whistling post, being 1339 feet from the center of the road crossing in question, and the track from the whistling post is down grade to the crossing. The defendant’s right of way is 100 feet wide, and fifty feet of the public road approach, including the bridge, is on the right of way. The train was running forty-five or fifty miles an hour; it is conceded by appellant that the evidence shows it was traveling about seventy-three feet per second. It was four or five minutes late on the day of the aeci*480dent and was running faster than usual to make up the time. That the train gave a warning signal after it was within 350 or 300 feet of the crossing is established beyond dispute in the evidence, and that the train was plainly visible and clearly heard from a point 450 to 454 feet east of the crossing is also proven. At this 454-foot point is what is known in the evidence as the “old road crossing” about which much dispute arises as to obstructions growing thereon.
The deceased and his wife were driving a team of horses hitched to a rather low buggy. There is evidence that deceased generally drove a good team of horses. The serious conflict in the evidence in this case is as to how far up the track the train could be seen as the deceased approached the track in the buggy. There is substantial testimony by witnesses for the plaintiff that on the “old road crossing,” which was located 454 feet east of the road on which deceased was traveling, grew elder bushes and sumac and weeds which would obstruct the view northeast up the track until a traveler going south on the road had reached a point within twenty feet of the railroad. On the other hand, some of plaintiff’s witnesses, and defendant’s witnesses, swear that owing to the fact that the'track was much higher than the fill and because of an old slough that was on the north side of the track, a train could be seen coming out of the cut some 1300 or 1400 feet away.
In any event, taking the rate of speed the train was traveling and the rate deceased was traveling in his buggy together with the testimony of the engineer and fireman who testified for the defendant, it is clear that when the train came out of the cut some 1300 or 1400 feet away from the crossing, the deceased was near the bridge. There were some witnesses who testified that deceased traveled at the slow gait he was going all the way up the approach and onto the railroad track. Other witnesses testified that he stopped *481on the bridge'. Some say that before he went upon the track his horses became nervous and that he was seen slapping them with the reins and urging them along. There is no testimony that he looked' or listened at any timé before entering upon the track. Much conflict appears in the record as to the crossing signals. A number of witnesses who were in close proximity to the crossing and to the deceased, some of whom were listening and expecting the train, swear positively that no signal was given until the distress signal was heard when the train was bearing down upon the deceased some 250 to 350 feet distant. Several witnesses' who had just crossed the track in a wagon ahead of the deceased and who were expecting and listening for the train and had only reached a point 117 steps south of the track when the accident occurred, say that the first they heard of the approaching"-’ train was the -noise it made as it passed a mill and vator located on the south side of the track about 350 to 533 feet east of the crossing. The. members of the train crew are corroborated by a number of witnesses in their testimony that the regular crossing signal was given by the approaching train.
There is much testimony, and several photographs were introduced in evidence and have been brought to this court, showing the condition of the country east of the public'road toward the cut in the railroad right of way east of the crossing, but this is not material here for the reason that the evidence shows plainly that whether the track, could be seén or not, the train could not be seen, not having come out of the cut, before the deceased and his wife had reachéd and started up the approach, the beginning of which was sixty-eight feet from the track. There is abundant testimony—by reason of which the verdict of the jury could not be disturbed—to support the finding that defendant failed to give the statutory crossing- signal. *482And there is testimony of a substantial character, affording a solid foundation Upon which ■ the verdict could stand, that there were such obstructions along the right of way as would cut off the view of the train until it had reached a point some 454 feet east of the crossing. Be .that as it may, the testimony is practically undisputed that when the train came around the curve, some 1400 feet distant from the crossing, the deceased was near the bridge. As stated, this bridge was without railing and was six or seven feet high, and the ground from the bridge to the track gradually rises so that the embankment on each side of the railroad track is from eight to ten feet high. After getting on the bridge, and south of it, the road is too narrow to permit a team and buggy to safely turn around. The deceased of course had a right to occupy the place he did. There is evidence that his team was afraid of an engine and that they became nervous. It must be conceded that before deceased actually drove upon the- track the train was in plain view and hearing at least 454 feet away. He was, therefore, as correctly stated by appellant, charged with a knowledge of the fact that the train was bearing down upon him.
In the light of these facts we are asked to say that in attempting to cross ahead of the train the deceased must be charged with negligence as a matter of law. This, no court could reasonably do. Confronted on the right and left by an embankment of from eight to ten feet in height, with not enough room in which to turn around, with an unrailed bridge to the rear, and with a nervous team which according to some of the witnesses was within four or five feet of the track when • the train could first be seen by the deceased, he had to act in an emergency—already in a place of great danger.' What he did, it is true, resulted disastrously, because the train caught the rear end of the buggy and deceased and his wife were killed.
*483Many cases in Missouri which' are familiiar to the bench and bar and need not be cited here, uphold the doctrine that a railroad crossing in and of itself is a warning of danger; that persons undertaking to cross are charged with a duty of looking and listening and caring for their own safety, and will hot be permitted to rely upon the presumption that the railroad company will exercise due care in properly managing its trains, when, by the exercise of due care its negligent acts could be detected and injury avoided by the individual. But in no ease do I .find that a person may be charged with contributory neglifence.as a matter of • law under facts similar to those appearing in this record, where, from the very incipiency of the danger, and where, from his very surroundings, he could first know of the approach of the train after he had lawfully and in the exercise of ordinary care placed himself in a perilous position. The law does not require one suddenly placed in a position of great peril to exercise the degree of presence of mind which one of ordinary prudence might exercise in the absence - of the danger. [Wyler v. Ratican, 150 Mo. App. l. c. 481, 131 S. W. 155.]
In reviewing the Missouri crossing decisions where the individual has been charged with contributory negligence as a matter of law, he invariably could have discovered his danger while yet in a place of safety and could have extricated himself by the exercise of due care and avoided injury. To hold the deceased— surrounded as he was with danger— to that- degree of care which he must have exercised had he been in a place of safety, would be an unwarranted extension of the power of the courts.
It is also well established in this State that in the absence of statutory and ordinance regulation, in crossing county roads and going from station to station, it is not negligence per se to run trains at a rate of fifty miles or more per hour. The demands of busi*484ness and the prod of competition requires railroad companies to operate their trains at a great rate of speed. But to approach a public road crossing, surrounded as this was, at the rate of speed defendant’s train was running, with the obstructions along the right of way testified to by some of the witnesses, there being some evidence that defendant failed to give the statutory signal, would certainly make a case for the consideration of a jury, to determine whether the giving of the statutory signal would have warned the deceased in time to have permitted him to stop before he, with his horses and buggy was upon the bridge, a place of imminent danger from which he could not turn or back without great danger. The failure to give the signal, under the statute, makes a prima facie case of negligence from which the defendant can only be relieved by showing to the satisfaction of the jury that such failure was not the proximate cause of the injury.
The evidence in this case fails to show any compensatory damages sustained. There is not a scintilla of evidence showing a pecuniary loss to any one by reason of the negligent killing of the deceased. It is conceded that the humanitarian doctrine does not enter into the case and there is therefore nothing that would indicate malice or wantonness or an aggravated case; yet the verdict of the jury was for $3000, which is $1000 more than the penalty fixed by the statute as construed in the recent decision of Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13, and for the lack of such evidence, under the decision in the Boyd case, the verdict is, to the extent of $1000, excessive The statute (section 5425, R. S. 1909) in this respect is not open to construction by this court because the Supreme Court has construed it and it is merely left to this court to follow that ruling. I understand the Supreme Court to mean what its plain and unambiguous language imports. Having had this question *485under discussion and consideration in several cases, the majority opinion, in banc, in finally summing up the penal, remedial, and compensatory features of the statute, contains this language which to me is unambiguous and needs no analytical construction: “In other words, a recovery under section- 5425, Revised Statute 1909, is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section, is remedial and compensatory.” Graves, J., in the opening sentence of his separate opinion in that case, places the same construction that I do upon the language of the majority opinion above quoted.
Although it is true appellant in its printed brief submitted the case on the sole question of whether contributory negligence did not bar a recovery, on oral argument appellant’s counsel called attention to this passage of its brief, stating that the brief had been prepared .and printed before the decision in the Boyd case was published, that the decision of the Supreme Court in that case would control, and that owing to the lack of any evidence that would justify remedial or compensatory damages the verdict in any event was for $1000 more than was permissible under this last decision of the Supreme Court. In my opinion the judgment should be affirmed on condition that respondent remit $1000 of the judgment recovered.