*626DISSENTING OPINION.
ROBERTSON, P. J.
—What is now section 3140, Revised Statutes 1909, concerning signals to be given at railroad crossings, originated in the Act of February; 1853 (Session Acts 1853, p. 21, sec. 46), and was carried unchanged into the Revision of 1855, page 436, as section 47, reading as follows:
“ See. 47. A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until it shall have crossed such road or street; or a steam whistle shall be attached to each locomotive engine, and be sounded at least eighty rods from the place where the railroad shall cross any such road or street, except in cities, and be sounded at intervals, until it shall have crossed such road or street, under a penalty of twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railroad, to be sued for by the circuit attorney of the proper circuit, within ten days after such penalty was incurred; one-half thereof .to go to the informer, and the other half to the county; and said corporation shall, also, be liable for all damages which shall be sustained by any person, by reason of such neglect.”
Immediately following that section was what is now a portion of section 3141, Revised Statutes 1909 which required a sign containing the words, in letters of the size of at least nine inches, “Railroad Crossing: Look Out for the Cars.”
In the same act, R. S. 1855, page 426, section 29, seventh paragraph, railroads were authorized to take and convey persons and property on their railroads, “by the power or force of steam or of animals, or by any mechanical power, and to receive compensation therefor. ”
*627At the time these laws were enacted there were less than fifty miles of railroad in this State, but more in course of construction, and no doubt that legislation then appeared as much exaggerated, as applied to the operation of railroads at that time, as does the insistence of respondent in this case that section 3140 should be made applicable to electric cars.
It is claimed by the respondent and not denied by the appellant, and so assumed in the majority opinion, that the defendant is incorporated under the general railroad law; consequently, if that is a fact, the reasoning adopted in the case of Commonwealth v. Louisville R. R. Co., 133 S. W. 230, cited in the majority opinion, would be as much in point as if there were a provision in our statute stating that the provisions of section 3140 are applicable to electric cars. I think the defendant should be governed by every provision of that act, if so incorporated, unless there is such a showing made and presented to us as will demonstrate clearly that it is impracticable for the defendant to obey this mandate of the Legislature, or that to require of it such obedience would be unreasonable or unjust.
. I think it is true that electric ears of the character of the one involved in this case may have been thought •of when the original railroad act was adopted. In 1835 .an attempt was made to build an electric railroad in Vermont. In 1838 an electric locomotive was built in ■Scotland and in 1850 a sixteen-horse power electric locomotive was run on the Baltimore & Ohio railroad’ at a •speed as high as nineteen miles per hour. At about the .same time a model electric railroad was constructed which received its current through the rails. It is not improbable that the words, “any mechanical power,” in the railroad act, may have been prompted by what was being attempted and accomplished with electricity.
Section 3140- does not require both the bell and the whistle to be placed upon and used as a signal for the vehicle used as a means of conveyance of passengers and *628freight by any railroad. Either meets the requirements of the statute. [Kenney v. Railroad, 105 Mo. 270, 285, 15 S. W. 983, 16 S. W. 837.]
When this legislation was first enacted there were, as far as I am able to learn, no other known signals than the steam whistle and the bell, both of American origin, and it may have been for the very reason that it was contemplated that the steam whistle might not always be conveniently used that the alternative signal by a bell was provided for. I think unquestionably what the Legislature had in view was the signal at crossings. The fact that a steam whistle is mentioned does not to my mind lead to the conclusion that a. similar signal equally effective as a steam whistle would not meet the requirements of the statute. The signal being the thing intended, there appears no reason for exempting trains or cars propelled by electricity simply because the statute mentions locomotive engines, even if strictly and technically speaking an electric car cannot be properly classed as a locomotive engine. The thing which is within the object, spirit and the meaning of the statute is as much within the statute as if it were within the letter. [Bryant v. Russell, 127 Mo. 422, 30 S. W. 107; Schawacker v. McLaughlin, 139 Mo. 333, 40 S. W. 935.] The letter of the statute may be enlarged or restrained according to the true intent of the framers of the law, so as to let the reason of the law prevail over its letter and not lead to absurd consequences. [Stubbs v. Mulholland, 168 Mo. 47, 73, 67 S. W. 650; Andrew County v. Schell, 135 Mo. 31, 42, 36 S. W. 206.] In the case of Bingham v. Birmingham, 103 Mo. 345, 15 S. W. 533, words were ignored to arrive at the legislative intent, and almost numberless other instances might be cited of eliminating and adding words in arriving at the legislative intent in construing statutes.
If the defendant in this case, as above mentioned, is a corporation organized under the general railroad act. in which section 3140 is found, then it must of ne*629eessity be governed thereby unless there is some good reason for exempting it therefrom. It cannot accept the benefits of the law and deny the burdens, without just cause.
I do not apprehend that anyone will contend, or that any court will declare, that it is essential for an electric car to carry a steam boiler for the purpose of operating a whistle, and especially so since the law can be complied with and no whistle attached or used. Neither do I imagine that anyone is going to insist, or that any court is likely to hold, that if a steam engine gave its only alarm with any other similar whistle as effective as a steam whistle that the provisions of this act have been thereby violated.
I do not believe it is the duty of this court to assume as a matter of law that an electric ear cannot or should not give one of the signals provided for in that section of the statute. While it is true that there is a common law liability imposed upon railroads for their failure to give proper signals such a. distance from the crossing as will most likely forewarn anyone intending to cross there so as to prevent them from approaching or placing themselves in a perilous position, I do not believe that the courts should by reason of that fact arbitrarily abolish the legislative standard. The same process of reasoning would justify the repeal of the statute as to all railroads. If we reason that by virtue of the fact that an electric car can be stopped in a shorter distance than can a train pulled by a steam engine, and that, therefore, the provisions of the law under which it is incorporated should not apply to it, then by the same process of reasoning the statute should be relaxed as against a train pulled by steam power in proportion to the size of the train, its load and its equipment for stopping. The object, I think, that was intended to be accomplished by the signal section and the signboard section was to prevent persons from placing themselves *630within a radius where they would likely be exposed to the dangers incident to all railroad crossings.
The majority opinion ‘is apparently based on the assumption that electric cars can be stopped with ease as compared with trains pulled by a steam engine, since there was no testimony on the subject. Again, it is held as a matter of law that it is impractical for the defendant to equip its cars with a bell or a whistle, and to sound one, as the statute provides, when there is no testimony that it is impractical and unnecessary for the defendant to do these things. Judicial cognizance should be exercised by courts with caution. [Timson v. Coal & Coke Co., 220 Mo. 580, 597, 119 S. W. 565.] Judicial notice should not be taken of facts “which the court cannot know without resort to expert testimony or other proof.” [Id., p. 596; see also St. Louis v. Niehaus, 236 Mo. 8, 139 S. W. 450.]
In’the case at bar the motorman testified that he was going at the rate of about twenty miles an hour and that he could stop his car in about three hundred feet. In the case of Harshaw v. Railroad, 173 Mo. App. 459, 159 S. W. 1, recently decided by this court, the' record discloses testimony that tends strongly to show that a passenger train, pulled by a locomotive, going down grade at the rate of twenty-five miles per hour, was stopped within three hundred feet. I do not cite this as evidence, nor as an argument for or against the proposition to require the defendant to comply with section 3140, but to the point that this court should not base conclusions on doubtful claims not proven,, but which if they are assumed must be improperly based on judicial notice.
I am not prepared to hold as a matter of law that, as shown by the record in this ease, it is impractical or unjust to require of the defendant that it have upon its cars one of the signals required by said section of the statute and that it be used eighty rods from all crossings in the country. Until a showing is made to evidence *631the propriety of holding the contrary I think a court should not supply the absence of such evidence by assuming facts that may not exist.
ON MOTION TO MODIFY JUDGMENT.
STURGIS, J.—Appellant insists that this ease should be reversed absolutely instead of being reversed and remanded with leave to amend the petition so as to state a common law action for negligence in failing to give sufficient warning of the car’s approach to the road crossing in question. It is claimed that such an amendment comes within the inhibition of substituting a new and different cause of action instead of being an amended statement of the cause of action originally sued on.
It is conceded that our courts favor the right to make amendments in pleadings and that our statutes are liberal in this respect up to the point of substituting one distinct cause of action for another, but that amendments must stop before reaching that point. We indorse what is said in Ingwerson v. Railroad, 150 Mo. App. 374, 381, 130 S. W. 411, 412, as to what amendments do not change the cause of action: ' ‘ Amendments are allowed under the code with great liberality as appears from our statute, sections 657, 659, Revised Statutes 1899. Amendments are allowed under section 657 when they do not change substantially the claim or defense, and the better considered authorities go to the effect that they will be allowed as long as the general identity of the original transaction affording the ground of complaint is maintained or adhered to. As long as the gist of the action remains the same in the proposed amendment, though the alleged incidents are different, it is regarded as the same cause of action and not the substitution of another, but the authorities rule that the proposed amendment' must not only relate to the same transaction, but must adhere as well to the con*632tract or injury originally declared upon, sufficient, at least, to maintain in a general way the identity of the cause of action first stated, so that the character of the proof will remain about the same. ” [See also Clothing Co. v. Railroad, 71 Mo. App. 241, 247, approved in Walker v. Railroad, 193 Mo. 453, 477, 92 S. W. 83.]
We are not persuaded that a change in the allegations of the petition for failure to give the signals required by statute in approaching the road crossing to allegations of failure to give signals required at common law, works a change in the cause of action. It is still an action based on the negligent failure to give proper and timely warning of danger when a rapidly moving car approaches a public road crossing and the gist of the action is not changed. In Lynn v. Railroad, 74 Mo. 167, 170, the plaintiff combined common law negligence with the statutory negligence in this respect in one statement and submitted both kinds of negligence to the jury under one instruction. The court said: “Nor for the same reason was error committed in embracing in the instructions, given at plaintiff’s request, both the grounds on which he relied for a recovery, since both those grounds constituted but one cause of action, that cause of action being the killing of plaintiff’s cattle, and the statement setting forth, as the means by which that injurious result was brought about, the failure of the defendant in its statutory duty and its negligence in other particulars. ... If, on the trial, he proves, for instance, that the injury complained of arose from the failure of the company to ring the bell and blow the whistle, he makes out his case. If he proves that the injury was caused by the negligence of the company in running its cars, he also succeeds; and he is entitled to the same measure of success, if he establishes that the injury was the compound result of negligence and failure in the performance of a statutory duty.” In Goodwin v. Railroad, 75 Mo. 73, the court held that under a complaint charging *633common law negligence in so carelessly running a train as to kill a steer on a public road crossing, proof of a failure to give the signals required by statute was admissible and would sustain the charge. [Braxton v. Railroad, 77 Mo. 455, 458.] This can hardly be true if statutory negligence and common law negligence in this respect constitute separate and distinct causes of action. See also the dissenting opinion of Judge Biggs in Rippee v. Railroad, 71 Mo. App. 557, 561, followed by the Supreme Court in 154 Mo. 358.
The mere fact that allegations of new facts, essential to constitute a cause of action and necessitating new and additional evidence to support same, are introduced in the petition by an amendment does not brand the amendment as introducing or substituting a new cause of action. [Clothing Co. v. Railroad, 71 Mo. App. 241 247.] In the case of Showen v. Railroad, 164 Mo. App. 41, 148 S. W. 135, the case was reversed because the petition was lacking in the averments essential to state a cause of action, but it was remanded for further trial, which could only be had after an amendment of the petition supplying the essential averments and necessitating new and additional evidence to support the same. Such also was the action of the Supreme Court in Mathieson v. Railroad, 219 Mo. 542, 118 S. W. 9, and in Barker v. Railroad, 91 Mo. 86, 14 S. W. 280, and of the Kansas City Court of Appeals in Field v. Street Railway, 21 Mo. App. 600, and Clemings v. Railroad, 21 Mo. App. 606. This court, in Greer v. Railroad, not yet published, has recently followed these and numerous like cases remanding for new trial a case where the petition must be amended to supply averments essential to the statement of a cause of action. Where a case is reversed and remanded without directions a new trial is ordinarily implied and, where the petition is adjudged defective, a permit to amend must also be implied. [Rock Island Imp. Co. *634v. Corbin, 98 Mo. App. 489, 492, 72 S. W. 782; State ex rel. v. Chaney, 49 Mo. App. 511.]
In Black v. Street Railway, 162 Mo. App. 90, 97, 144 S. W. 131, the court held it proper, to so amend a petition as to allege general negligence only after the ease had been reversed and remanded by the Supreme Court for inability to make out a case based on allegations of specific acts of negligence, such not being a change of the cause of action though requiring much less proof than the original petition. [See also Stone v. Trust Co., 150 Mo. App. 331, 346, 130 S. W. 825; Ely v. Railroad, 141 Mo. App. 708, 719, 125 S. W. 833; Woodson v. Railroad, 224 Mo. 685, 708, 123 S. W. 820; Madden v. Railroad, 50 Mo. App. 666, 682.] The question of permitting a petition to be amended before proceeding to a new trial is different from allowing a petition to be so amended during or after the trial as to present new issues which the defendant was not summoned to meet and, therefore, was not prepared to refute. This distinguishes several of the cases cited and relied on by appellant. The motion to modify the opinion and judgment is therefore overruled.
All concur.