The defendant appealed from a judgment in favor of the plaintiff for five thousand dollars-damages for the death of her husband, who was run, over by one of the defendant’s cars at-or near the intersection of Union avenue and Hickory street, in Kansas-City, in February, 1886.
The defendant offered no evidence. That for the-plaintiff is, in substance, as follows: “Hickory street runs north and south, and Union avenue crosses it in a northwesterly direction. Hickory street forms; the eastern boundary of the defendant’s switchyards, and Union avenue extends along the northeast side thereof.. There are five or six railroad tracks on and along- Union avenue at this crossing, one of which, at least,, is used by the Wabash road, and others are owned by the-defendant. The deceased, in going to church on Sunday morning, traveled southward from his home on- and along Hickory street until he reached these several tracks. There his progress was obstructed by a train of the Wabash road going east on the south track. At this time defendant’s servants were switching cars in- and-out of the yard. They had a string of cars to the east of the crossing, and from the rear of their train they “ kicked” a single car westward over the crossing- and into the switch yard. There was no brakeman or other person on the car, and it ran on and over O ’ Connor, and he died from the effects of the wounds then received. ,
*155There is evidence to the effect that O’Connor, in order to get by the passing Wabash train, turned and went west on the defendant’s track thirty, forty, or fifty feet, and that the car hit him in the back while he was thus going west; other witnesses who measured the distance say he was found, when run over, not more than fifteen feet west of the west line of Hickory street. There is still other evidence to the effect that he was hit while in the limits of Hickory street, and that the car pushed him westward. If not hit while on Hickory street, he was on Union avenue, both public streets. One or two persons, who were of the crew engaged in-switching the cars, hallooed to him to get off the track, but it is evident he did not hear the warning, probably because of the noise of a passing train and that of two-switch engines near the same place.
1. The defendant objected to the introduction .of any evidence; this objection, it' is contended, should have been sustained because the petition did not allege-that the deceased was without fault on his part. It is-the established law of this state that it is not necessary to state in the petition that the plaintiff or the deceased person was, at the time of the injury, in the exercise of due care or without fault. It is for the party who relies upon negligence, either as a cause of action, or a. defence, to allege and prove it. Thompson v. Railroad, 51 Mo. 190; Lloyd v. Railroad, 53 Mo. 509; Petty v. Railroad, 88 Mo. 306; and many other cases.
2. The public as well as the defendant had the-right to the use of the streets, and the defendant was at all times in duty bound to respect the rights of persons traveling thereon. The only purpose of making a flying switch was to save travel on the part of the engine. It is too plain to admit of a shadow of doubt that making a flying switch on a public highway, which is in constant use, and without the car being attended by, and under the control of, a brakeman, is evidence of' *156gross negligence. Kay v. Railroad, 65 Pa. St. 269; Butler v. Railroad, 28 Wis. 487. In Brown v. Railroad, 32 N. Y. 597, such an act was characterized as gross negligence, and it may be the better doctrine to say that such an act, under the circumstances disclosed in this case, is negligence joer se. But the instructions given in this case do not require us to express any opinion upon that proposition. The court, by the instruction given at the request of the plaintiff, left it to the jury to say whether defendant was guilty of negligence, and by another, given by the court, of its own motion, the jury were told that if defendant cut the car loose and permitted the same to run across the street unguarded and unattended, and in such a manner as to endanger travelers passing along or across the street, then such conduct constituted negligence on the part of the railroad company. Again, the court, after stating the abstract proposition that plaintiff could not recover, though the defendant was guilty of negligence, if O’Connor was also negligent, proceeds to say : “It was •O’Connor’s duty, and he was bound to use his eyes and ears as an ordinarily prudent man would under similar •circumstances, to detect the dangers of the situation; and if he failed to do this, which, if he had done, the injury would not have resulted, then his widow, the plaintiff here, cannot recover, although the car was negligently kicked across the street as charged in the petition.” There can be no valid objections to these instructions so far as they relate to negligence on the part of the defendant. And as to contributory negligence on the part of the deceased, we know of no better guide than to measure his conduct by that of a prudent person under like circumstances.
3. The appellant, however, insists that the court should have directed a verdict for the defendant, and an instruction of this character was the only one asked by the defendant. It is the duty of a traveler on a high*157way, when about to cross a railroad track, and especially where there are a number of trains, to use his eyes and ears; in other words he should keep a sharp watch for-approaching cars, and if he does not do this, bo is guilty of negligence; and when his failure to do this is clearly-shown by undisputed evidence, or is found to be a fact by the jury, he cannot recover. The defendant has a right to rely upon the exercise of ordinary prudence on the part of the plaintiff, as in this case on the part of the deceased; so, on the other hand, the plaintiff has the right to presume due care on the part of the defendant. As said in Shearman & Redfield on Negligence (3 Ed.) sec. 31: “As there is a natural presumption that every one-will act with due care, it cannot be imputed to the plaintiff as negligence that he did not anticipate culpable negligence on the part of the defendant. He has a right to assume that every one else will obey the law, and to act upon that belief.” This doctrine was approved in Buesching v. Gas Light Company, 73 Mo. 219, and again asserted in Stepp v. Railroad, 85 Mo. 229, and more recently in Petty v. Railroad, 88 Mo. 320. The authors before cited, and in the same section, go much further and say: “Nor even where the plaintiff sees that the defendant has been negligent, is he bound to anticipate all the perils to which he may possibly be exposed by such negligence, or to refrain absolutely from pursuing his usual course on account of risks to which he improbably exposed by the defendant’s fault.” Shear. & Redf. on Neg., supra.
Now in this case, although the deceased was bound to keep a sharp watch for cars, yet he was not bound to. anticipate that defendant would make a flying switch across and over the public highway — he was not bound to be prepared for an act of negligence on the part of the defendant. In view of the noise made by the passing trains, it cannot be said, as a matter of law, that he was negligent in failing to hear the warning of the men of *158•the crew. O’Connor is dead, unable to speak, and it ■ does not appear that he failed to make proper use of his ■eyes and ears. Whether he did or not, was a question •to be determined from all the circumstances in evidence —a question of fact for the jury. As we said in the Stepp case, supra, where the traveler’s fault, if any there was, is not disclosed by his own evidence, and the company is shown to have been in default, it devolves upon the defendant to show the want of proper care on the part of the person injured. It would have been more prudent on the part of the deceased, looking from1 ;a standpoint after he had been killed, to have waited until the Wabash train had passed, but that train was going to the east and he stepped to the west (so some of the-witnesses say), all the while being within the limits of Union avenue, and whether he v^as thereby guilty of negligence was eminently a question for the jury. On the whole we see no reason for taking this case from the jury.
The judgment is, therefore, affirmed.
Ray, J., .absent. The other judges concur.