ON MOTION FOE EEHEAEINGr.
In a motion for rehearing defendant very earnestly insists that we should hold, as matter of law, that plaintiff was guilty of such negligence, in attempting to cross the track in front of the approaching car, as to bar him of recovery without regard to the humanitarian rule. Defendant’s contention is that plaintiff’s knowledge that a car was coming is sufficient of itself to put him beyond the pale of the humanitarian rule. But plaintiff’s knowledge of the approach of the car is not sufficient of itself to do this. Of itself, such knowledge can only render plaintiff guilty of contributory negligence, and such negligence does not prevent the operation of the humanitarian rule, if after such negligence becomes apparent to the motorman there is still time for him in the exercise of reasonable care to avoid the injury. Plaintiff’s knowledge of the approach of the car could affect the humanitarian rule only in one way: That is, by such knowledge being made apparent to the motorman. If the motorman *372knew that plaintiff was aware of the approach of the car, then the motorman had a right to presume that the plaintiff would not go from a place of safety into a place of danger. But, if the motorman had nothing to show that plaintiff knew the ear was approaching, he had no right to presume that plaintiff would not go upon the track because the plaintiff was looking the other way and was steadily approaching the track giving every indication of an intention to cross, and no indication whatever that he knew the car was coming. In that situation, plaintiff was oblivious to his danger, and that obliviousness was apparent to the motorman. If now, after that obliviousness became apparent to the motorman, there was still time for him to check or stop the car, by ordinary care, it was his duty to do so under the humanitarian rule. The fact that plaintiff was mentally aware that a car was approaching would have no effect on the humanitarian rule unless the motorman knew or had reason to believe he was so aware of it. Plaintiff could have knowledge that a car was approaching and yet be oblivious to the danger of crossing the track; and unless there was something to lead the motorman to believe plaintiff had such knowledge, there was nothing to prevent the motorman from knowing that he was oblivious to the danger.
For this reason we do not think the decision herein is contrary to Reeves v. Railway, 158 S. W. 2, nor to Pope v. Railway, 242 Mo. 232, nor to Kinlen v. Railway, 216 Mo. 145. In the Pope case the plaintiff’s knowledge of the approach of the train was known to the engineer. But even in that case the court says there will he liability if proper care is. not exercised to stop'the train after it becomes apparent that the person was going to remain in danger. In the Reeves case, the engineer had the right to assume that Mrs. Cozby would not walk in front of the train because she looked at the approaching engine, and as *373said by tbe court “the engineer was fully warranted in supposing that sbe saw it and would exercise tbe ordinary intelligence of an adult and keep out of its way.” And in tbe Kinlen case tbe court is talking about an instruction presenting a situation where one knowingly drives in front of an approaching car when he knows he will not have time to cross in safety.
Unless the knowledge plaintiff had of the car’s approach was manifested in some way so as to lead the motorman to believe that plaintiff was not going to drive on the track, plaintiff’s undisclosed knowledge could do no more than to make him guilty of contributory negligence. Now contributory negligence, however great, cannot prevent the application of the humanitarian rule. The only thing excusing a defendant from the operation of such rule is lack of time after discovery of the perilous situation to avoid the injury. If there is time to avoid the injury by ordinary care, after discovery of the peril, then a failure to use such care after such discovery will render a defendant liable no matter, how gross the negligence of the other party. On this point see what Lamm, J., says in Dutcher v. Railway, 241 Mo. 137, l. c. 163, wherein he concludes thus: “It is clear that the frequent statements that contributory negligence is an absolute bar to recovery, except where the defendant’s conduct has been ‘reckless,’ ‘willful’ or ‘wanton,’ or even grossly negligent, are not sound. No courts have in actual practice adhered to this imaginary rule; it has been explicitly overruled, and, indeed, it has been explained away or disavowed by courts which have previously stated it. Nothing more is really meant by the courts using these phrases than a want of ordinary care, after becoming actually aware of the plaintiff’s peril.”
The motorman agrees with plaintiff that when the car was 200 feet from the crossing the plaintiff was approaching the crossing and looking the other way. *374It is trae he-says plaintiff stopped and waited until the car was only forty feet away and then whipped up and tried to cross in front of it. The question of whether this happened or not was submitted to the jury and they found plaintiff did not stop. So that the motorman had nothing to lead him to believe that plaintiff was not going into danger, hut every reason to know that he was and was doing so looking the other way.
We think that under these circumstances there was sufficient ground for the submission to the jury of the question of defendant’s liability under the humanitarian doctrine, and that our decision is not in conflict with the rules laid down by the Supreme Court. Motion for rehearing denied.
All concur.